HALIM ABDUL v. KAY RANSOME, ESQ., AND OTHERS

HCAL 936/2017

[2018] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 936 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year-old national of Bangladesh who entered Hong Kong illegally on 16 August 2015 and was arrested by police on the same day.  After being 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 supporters of rival political party Awami League (“AL”) and by some of his former clients for losing their money or investments.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Kaneswar, Damudya, Shariatpur, Bangladesh.  After receiving 14 years of formal education, he had worked as a shop manager and an accountant before becoming the manager of a company known as SMUS in Shariatpur in 2012 taking deposits and lending money to clients.  He had also joined the Bangladesh Nationalist Party (“BNP”) and became the vice-president of its sister organization Jatiotabadi Seccasebokdal doing voluntary work for the party.  He is married with his wife and son still living with his family in Bangladesh.

3.  In about November 2014 it was discovered that clients’ monies deposited in SMUS had been embezzled by the company administrator, and the company’s clients started to gather at the company office demanding for the return of their money, during which the applicant was detained for several hours and was threatened with violence until he gave an undertaking in writing that he would do his best to get back the money for the clients, some of whom were known gangsters in the village whilst others were political influential and members of AL.

4.  After his release the applicant did not report the matter to the police, but some of his clients would come to his home almost every day demanding for the return of their money and making threats to him and his family if he failed to do so soon.  Again he never reported any of such threats to the police.

5.  One day in January 2015 while the applicant and other members of BNP were attending a rally in the village, they were attacked by a group of AL supporters with sticks and pistols during which the applicant was injured in the head and was taken to the village clinic for treatment. Afterwards he did not make any report to the police as he believed that they were under the influence of AL.

6.  This attack by AL supporters on BNP members during their rallies occurred again in both February and March 2015 during which the applicant had sustained injuries which required medical treatments, but on 28 March 2015 when he was informed by his cousin that the local leaders of AL had planned to eliminate him due to his growing popularity in the village, he fled with his wife and son on the following day to his in-laws’ home in Khulna, and upon further learning from his mother that the AL people had come to his home in the village armed with weapons looking for him, he decided that it was not safe for him to remain in Bangladesh, and fled to Dhaka by himself in April 2015 to hide in his niece’s place where he made plans to depart Bangladesh, which he eventually did on 10 August 2015 when he flew to China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 13 April 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 took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the AL people or the SMUS clients upon his return to Bangladesh as low, that his money dispute with the SMUS clients was a private and personal matter that can be resolved in court, that in the absence of any official involvement that state or police protection would be available if resorted to, that there is no reliable evidence to show that he had been specifically targeted by the AL people in those attacks, and that Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Dhaka where he had stayed for several months without incident and where it would be difficult if not impossible for his enemies to locate him.

9.  By a Notice of Further Decision dated 30 December 2016 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, which appeal he filed on 26 April 2016, and for which he attended an oral hearing on 20 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the applicant’s account of being detained and threatened by his clients as not credible, that in the absence of any official involvement that state or police protection would be available if resorted to, and while it accepted his account of being a member of BNP involved in clashes between members of BNP and AL, it did not believe that he was specifically targeted by the AL people for harm, and that whatever risk of harm to him as a supporter of BNP at the hands of the AL supporters or his former clients, it is a localized one in his home village that it would not be unreasonable for the applicant as a highly educated and qualified man to relocate to other areas in Bangladesh away from his home district such as Chittagong or Dhaka where he had stayed before without any incident and which are large cities with big populations that it would be difficult if not impossible for him to be located.

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 however just 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.  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 with the majority of the documents in English and without the assistance of an interpreter there was simply insufficient time for him to prepare for the appeal.

15.  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 as they had earlier already 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 the appeal hearing before the Board he was assisted by an interpreter but he never raised any issue with the hearing bundle or requested the adjudicator for further time or adjournment to enable him to better prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

16.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm from those clients of the applicant and the AL supporters is a localized one and that it not unreasonable or unsafe for the applicant to relocate to other part of Bangladesh, they were therefore entitled to conclude that there is 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 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