MD IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 220/2018

[2019] HKCFI 592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 220 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 50-year-old national of Bangladesh who entered Hong Kong illegally in November 2011 and was arrested by police on 23 June 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by his fellow villagers, supporters of the political party Jamaat-e-Islami (“JeI”) and/or the government for having criticized the religion of Islam.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised as a Muslim in Village Bahadurpur, District Brahmanbaria, Bangladesh.  After leaving school with a Bachelor’s degree in Social Science, he engaged in various business including running one in Singapore in 2001, and upon returning to Bangladesh in 2002 he started travelling to Hong Kong purchasing electronic goods for his business when on one occasion he was arrested for overstaying and was subsequently repatriated to Bangladesh.

3.  In 2003 the applicant started to question his own religion of Islam and in 2004 he ceased practicing as a Muslim altogether. On one occasion in 2008 when he commented to his fellow villagers that money was wasted for Muslims in Bangladesh to go to Mecca for their annual pilgrimage, he was pushed and punched by some of the villagers.

4.  On another occasion in 2009 when he criticized the religion of Islam in front of the mosque in his village, he was attacked by some of the worshippers including a member of JeI who threatened to kill him for desecrating Islam that the applicant suffered injuries in various parts of his body and fled home where he was advised by his family to take shelter at his sister’s home in Dhaka.

5.  As the applicant was still fearful of further threats or attacks in Bangladesh, he decided to leave his country for his own safety which he did on 15 February 2009 when he flew to China to stay at his friend’s place in Shenzhen until November 2011 when his friend could no longer support him, he then sneaked into Hong Kong where he was eventually arrested by police on 23 June 2014 and lodged his non-refoulement claim with the Immigration Department, for which he subsequently completed a Non-refoulement Claim Form (“NCF”) on 21 January 2016 with legal representation from the Duty Lawyer Service and attended screening interview before the Immigration Department.

6.  By a Notice of Decision dated 14 December 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

7.  In his decision the Director found that the applicant had made various different versions of his account of the incidents in his village in 2008/2009 which allegedly caused him to leave Bangladesh as unacceptable or not credible, that leaving aside the issue of credibility the risk of harm from the villagers or the supporters of JeI or the government in Bangladesh upon his return was assessed to be unlikely to materialize due to the low intensity and frequency of ill-treatments from them in the past, that in the absence of official involvement state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other parts of Bangladesh away from his home district in large cities such as Dhaka where he had stayed before without any incidents that it would be difficult if not impossible for his perceived enemies to locate him.

8.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 28 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board similarly found the applicant’s evidence unreliable for giving different versions of those incidents in his account, that he did not really intend to apply for non-refoulement protection when he stayed in Shenzhen for two years before sneaking into Hong Kong in 2011 and did not make any application until his arrest by the police in June 2014, that even if his account of those incidents were true that according to reliable COI that state protection would be available to the applicant, and that he can also easily relocate to other parts of Bangladesh in large cities such as Dhaka where it would be difficult if not impossible for his enemies to locate him.

10.  On 12 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge which can be summarized as these:

(1)  that the Board erred by failing to maintain high standard of fairness by not administering that the hearing bundle be delivered to the applicant within reasonable time and with/or with interpretation in his own language;

(2)  that the Board erred in approaching the appeal by simply trying to see whether it could find fault with the decision of the Director who was excused from attending the appeal hearing which shows a general practice of the Board not to question or find fault with the decision of the Director;

(3)  that the Board failed to take into consideration that the applicant was not legally represented and that he did not have sufficient legal knowledge which could jeopardize his appeal, that the adjudicator did not inform him that he could complain, and that the applicant dared not to complain as it might bring unsatisfactory outcome.

11.  Ground (1) refers to procedural fairness over the provision of the hearing bundle to the applicant allegedly only a few days before the hearing of his appeal to the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

12.  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, record of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

13.  As for the applicant’s complaint under ground (2), it is clear that the adjudicator did treat the appeal as a rehearing of the applicant’s claim under all applicable grounds when he was invited to give evidence in support of his claim, whilst his complaint of the non-attendance of the Director at his appeal hearing is clearly misplaced, as the mechanism for his appeal before a different person in the absence of the Director is in fact a safeguard for fairness, and I fail to see how the applicant could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.  There is simply no basis or merit in this ground of the applicant.

14.  For his complaint under ground (3) of not being provided with legal representation in his appeal, it has been held by the Court of Appeal that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

15.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation at his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty and with the assistance of an interpreter.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.     

16.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

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 or irrationality 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.

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