LATIF MOHAMMAD ABDUL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1003/2017

[2018] HKCFI 1315

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1003 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;         or
	consideration of the documents and the Applicant being absent;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The applicant is a 27-year-old national of Bangladesh who entered Hong Kong illegally on 10 May 2013 and was arrested by the police on 15 May 2013.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 30 July 2013 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Koyra Bagurpur, Koyra Bazar, Ulla Para, Sirajganj, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving school he joined BNP in 2008 as an ordinary member, and in 2010he was appointed the secretary of the youth wing of BNP in his home district responsible for organizing meetings and rallies for the party.

3.  Starting 2009 there had been many conflicts and disputes between members and supporters of BNP and AL and the applicant was sometimes involved in those conflicts.  One night in 2010 while the applicant and some BNP members were on their way home from a party meeting, they were ambushed by AL supporters with iron rods and wooden sticks during which the applicant was hit all over his body until he passed out.  After he was discharged from the hospital he reported the matter to the police but as he was unable to identify his assailants the police refused to carry out any investigation.

4.  In 2011 the applicant received mails from the police asking him to go to the station to face a complaint filed by the AL people against him for stealing money from a leader of AL, as the applicant believed it was a false charge deliberately made up against him by the AL people, he fled to his friend’s place in Koyra Bagurpur and later applied a court bail so that the police could not arrest him.

5.  About a month later while the applicant was playing cricket with his friends and BNP members, they were surrounded by 50 – 60 AL people armed with machine guns and pistols when the applicant was singled out and beaten with cricket bats resulting in bruises and abrasions and had to be taken to the hospital for treatments.  However on the same day some 200 – 300 AL people came to the hospital to demand that the doctors shouldstop treating the applicant and made a big commotion there.  After he was discharged from the hospital the applicant reported the matter to the police but again to no avail.

6.  On that night after the applicant had returned home, some 200 AL people later came looking for him but the applicant was able to flee from the back door to take shelterat his friend’s home in Dhaka.  When the AL people were unable to find him in his homevillage, they started looking for him at his friend’s place, and so he left and hid in anotherfriend’s place for about a month during which he was advised to leave Bangladesh for his own safety.  With the assistance of an agent the applicant departed Bangladesh in 2012 for China where he stayed for 8 months before sneaking into Hong Kong in May 2013 and lodged his non-refoulement claim, for which he later completed a Torture Claim Form (“TCF”) on 11 February 2014 and a Supplementary Claim Form (“SCF”) on 25 March 2015 with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 19 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director found on the facts of the applicant’s case no substantial grounds for believing that his claimed risk of harm upon his return to Bangladesh would materialize, that there is no state or police involvement in the alleged threats made againsthim and hence state protection would be available to him if resorted to, and that objectiveCountry of Origin Information (“COI”) show that reasonable internal relocation alternativesare available in Bangladesh with a large population of 168 million people spread across avast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas other than his home district such as Dhaka where he can live and work free of any threats from the AL people.

9.  By a Notice of Further Decision dated 7 November 2016 the Director again rejected the applicant’s claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”) after receiving additional documents from the applicant but were found to be wholly irrelevant to his claim.

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 2 December 2015, and for which he attended an oral hearing on 12 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 February 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board having heard the applicant in evidence found him a dishonest witness, that his story is unreliable and that he is not a genuine claimant for the reasons set out in details in paragraphs 6 – 17 of the decision, that even if his alleged threats from the AL people were true, it did not accept that after all these years that they would still have any adverse interest in him or that even if they should have huge resources and manpower that they would be willing to locate him all over Bangladesh, and that in any event it would be safe for the applicant to return to reside in Bangladesh at least other than his home district.

12.  On 4 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, of which he was clearly some 7 months out of time but has never made any application for extension of time nor provided any explanation for his delay.

13.  Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose, which means not later than 8 May 2017 in the applicant’s case, unless the court considers that there is good reason for extending the period within which the application should be made.

14.  A delay of 7 months certainly seems to me significant in the absence of any explanation from the applicant, and while the merits of his intended challenge can be a significant matter to be taken into account to see whether there is good reason for extending time, as per G Lam J in Re Thomas Lai [2014] 6 HKC 1, as will be apparent below an examination of those grounds of the applicant show that there is none.

15.  For his leave application the applicant has put forward 8 grounds in his supporting affirmation of the same date for his intended challenge:

(1)   procedural impropriety/unfairness in the adjudicator’s failing to make sufficient research or inquiry into COI in the consideration of his claim;  

(2)   irrationality in the adjudicator’s failure to put any weight in relevant COI and improper reliance on irrelevant COI in the consideration of his claim;

(3)   irrationality in the adjudicator’s failure to make finding of facts of gross and mass violations of human rights in Bangladesh;

(4)   irrationality in the adjudicator’s failure to analyze and assess state protection in Bangladesh;

(5)   irrationality for the Board to take into account of irrelevant considerations of his claim;

(6)   procedural impropriety in failing to call for psychological and psychiatric evaluations and reports on him;

(7)   procedural impropriety/unfairness when the adjudicator applied the incorrect standard of proof in his decision; and

(8)   procedural impropriety/unfairness in lack of or insufficient legal representation from the assigned duty lawyer for the applicant.

16.  These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way was his legal representation from the Duty Lawyer Service insufficient.

17.  Furthermore, given the fact that the applicant’s claim was rejected essentially on his credibility, any attempt to challenge the Board’s decision on its reliance of COI to assess the situations in Bangladesh appears to me futile and pointless, while his complaint of not calling for psychological or psychiatric evaluations is unsupported by any medical reasons or evidence, and as explained in details by the Board in paragraphs 6 – 17 of its decision, I find that the adjudicator did apply the correct test in his assessment and consideration of the applicant’s credibility as to his claim, and I see no basis in this complaint at all. 

18.  The only discernable complaint that may be made of these assertions is over the provision of the hearing bundle to him only a few days before his appeal hearing before the Board and that all the documents were in English, however it is plain that he should bewell familiar with most of the documents in the bundle which included his TCF and SCF which were completed on his instructions, records of his screening interviews and the Director’s decisions which were already made available to him when he still had legal representation, and of which he never raised any issue with the adjudicator at his oral hearing before the Board.  I do not see any basis in this complaint of the applicant either.     

19.  In the premises I do not find any merits in the applicant’s intended application for judicial review, and in the absence of any good reason for extending time, his leave application is hereby dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1