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HCAL 938/2017
[2018] HKCFI 1456
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 938 of 2017
BETWEEN
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Mohammad Amin Uddin Mondol |
Applicant |
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Ms Kay Ransome, ESQ. |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 17 July 2014 and was arrested by the police on the same day. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 20 July 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party the Awami League (“AL”). He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Shahebnagor, Chuadanga, Bangladesh where his mother, his wife and his two children still live. At school he joined Chhatra Shibir, the student wing of the political party Jamaat-e-Islami (“JeI”) attending meetings and rallies. After leaving school he started his own business by running a shop in Chuadanga.
3. In 2014 AL won the election and remained in power as the ruling party. One day one of AL leaders called the applicant inviting him to join their party, and when the applicant refused, he was threatened that a false complaint would be made to the police against him so that he would be arrested like some of his fellow members of JeI.
4. A few days later a group of AL supporters came to the applicant’s home looking for him, and when they could not find him they beat up his brother and threatened his father that they wanted the applicant out of Chuadanga or else they would kill him. Afterwards his father did not report the matter to the police because he thought they would not be willing to help as AL was the ruling party, but he warned the applicant to stay away and so the applicant took shelter at his friend’s place in Dhaka.
5. About a week later the AL supporters again came to the applicant’s home looking for him, and when his father refused to tell them where the applicant was hiding, they beat up his father with wooden sticks and again threated to kill the applicant when they found him.
6. One month later the applicant’s friend in Dhaka where the applicant was staying received a telephone call from the AL people asking him whether he was sheltering the applicant, and when his friend denied it he was warned by the AL people of serious consequences if he did. Afterwards his friend asked the applicant to leave as he was afraid of the AL people, and so the applicant left for India on 17 January 2014 but returned after the expiration of his visa, and on 15 July 2014 he left Bangladesh again for China, and from there he sneaked into Hong Kong where he raised his non-refoulement claim, and for which he completed his Non-refoulement Claim Form (“NCF”) on 10 March 2016 with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 23 May 2016 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 expressed doubts about the applicant’s credibility as to his account of the threats from the AL supporters, but found that even if it were true that the threats were only verbal and mostly hearsay indicative of low risk of harm from the AL people upon his return to Bangladesh, that in the absence of any evidence of any involvement of the state or the police in those threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home village such as Dhaka or Chittagong.
9. By a Notice of Further Decision dated 3 April 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement 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”).
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, for which he filed his appeal on 6 June 2016, and for which he attended an oral hearing on 11 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 14 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board found changes and inconsistencies in the applicant’s evidence from those given to the Director, and his inability to provide any details of the policies, platform or activities of Chhatra Shibir despite being its member for more than 15 years before he left Bangladesh as incredible that it did not accept that he had ever been a member of Chhatra Shibir or intimately involved in its activities in his local area so as to draw attention of the local AL people, and concluded that he is not a credible or reliable witness and that he has fabricated and concocted his evidence to advance a claim for non-refoulement protection.
12. On 23 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.
13. 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 did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
14. 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 in the assessment of situations in Bangladesh seems to me futile and pointless, as it is well established principles that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against him by the adjudicator who had had the benefit of seeing and hearing him in evidence and in answering her questions at the oral hearing on the core of his claim that he was a member of Chhatra Shibir and was thus specifically targeted by the AL supporters which was rejected by the adjudicator as his fabrications to advance his claim for non-refoulement protection, I fail to see how any of these grounds of the applicant can be reasonably arguable.
15. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.
16. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing before the Board. Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.
17. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
18. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.
Dated the 13th day of July 2018.
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(NG Ka-wing)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 13 July 2018
Mohammad Amin Uddin Mondol
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 July 2018
Ms Kay Ransome, ESQ.
Putative Respondent’s ref. no.:
USM 3845/16/6/35/B522
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 334/16 (formerly RBCZ 9000989/17 & RBCZ 2438/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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