FARID v. DIRECTOR OF IMMIGRATION

HCAL 35/2018

[2019] HKCFI 1430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 35 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 42-year-old national of Bangladesh who first arrived in Hong Kong on 28 July 2006 as a visitor but when he overstayed and was subsequently arrested by police and referred to the Immigration Department for investigation, he raised a torture claim that he would be harmed or killed by three members of rival political party Bangladesh Nationalist Party (“BNP”) if he returned to Bangladesh, and when it was subsequently rejected by the Director of Immigration (“the Director”) and his subsequent appeal to the Torture Claims Appeal Board (“the Board”) was also dismissed, he left Hong Kong on 10 October 2011 to return to Bangladesh.

2.  In or about 2013 the applicant entered Hong Kong again and made a torture claim on the same basis as before, of which the Director regarded as a subsequent claim made under section 37ZO of Part VIIC of the Immigration Ordinance, Cap 115, and the applicant was then released on recognizance pending the Director’s determination of his claim.

3.  According to his previous claim, the applicant was born and raised in Baparipara, Bangladesh, and joined the political party Awami League (“AL”) in 1994 promoting its activities during which he had had some disputes with three BNP members HD, RT and PK when he refused their invitation to join their party, and in 1996 after BNP lost the election, the applicant was arrested by the police, and although he was soon released he suspected that the three BNP members were behind the arrest.

4.  In 2004 he was again arrested by police for possession of firearms and was beaten badly by them until a bribe was paid by his family that he was released, and in 2005 he was assaulted by the three BNP members for refusing to leave AL to join their party for which he was hospitalized for a damaged thumb.  Afterwards he became concerned for his own safety and departed Bangladesh in July 2006 for Hong Kong where he lodged his first torture claim which was as noted above subsequently rejected by both the Director and the Board and he returned to Bangladesh.

5.  Sometime in 2013 the applicant came back to Hong Kong illegally and by a letter dated 3 December 2013 he raised a torture claim again with the Immigration Department on the same basis as before that he would be harmed or killed by the same BNP people.

6.  By a Notice of Decision dated 26 October 2017 the Director was not satisfied that the applicant had provided sufficient evidence to show that there has been a significant change of circumstances since his previous claim was determined, or that such change when taken together with the materials submitted in his previous claim would give the subsequent claim a realistic prospect of success, and hence refused to allow him to make a subsequent claim under section 37ZO of the Ordinance.

7.  A subsequent claim is defined under section 37U as a torture claim by a person who has previously made a torture claim that has been finally determined or withdrawn, while section 37ZO provides the following limitation on a subsequent claim:

“ (1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4)  If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5)  If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.” 

8.  The applicant’s subsequent claim was initiated, as noted above, by his letter of 3 December 2013, and followed by three further letters from him dated 19 September 2017, 3 October 2017, and 17 October 2017 summarized by the Director in paragraph 9 of his decision as follows:

“ (a)  In your letter of 3 December 2013, you claimed that you have political problem with your opposition party BNP. You are a member of AL. Due to your political disputes, BNP wanted to kill you. One day, 7 – 8 BNP members led by RT and PK kidnapped you while you were standing in front of your house at Baparipara. They took you to an abandoned house at Adarshapara which was 2 kilometers away from your house. Some of your neighbours saw the incident and followed them. After BNP people put you up at that house, they locked the doors and then left. After sometimes, your neighbours broke the lock and rescued you. You then moved to different places in Bangladesh but kept on receiving threats from BNP. So in order to save your life you left your country.

(b)  In your letter 19 September 2017, you claimed that you have political problem in your country and you did not want to go back to your country. You made a request for a subsequent claim in Hong Kong.

(c)  In your letter of 3 October 2017. You claimed that you came to Hong Kong in around 2008 due to political disputes. You went back to Bangladesh in 2011 by thinking that your problems were solved. You thought you could live in Bangladesh happily and peacefully. But you were wrong. Your problems in Bangladesh increased to more danger level which was why you were running in different places in Bangladesh to save your life. You submitted some evidence of your internal relocation in Bangladesh (Annex 1 – 17), medical certificates of your mother (Annex 18 – 19), a Chairman Certificate (Annex 20) and a lost report to the police made by your brother (Annex 21) with the letter.

(d)  You furthered that you have much more evidence to submit for re-opening the non-refoulement claim. You furthered that Bangladesh is the most violent country at this time. Lots of people are tortured, kidnapped, killed and raped almost every day because of the uncontrollable political violence and corrupt government. Even political parties are using the police department as their own gangster group. The police department and the other gangsters are torturing other party people together. There is no safety in Bangladesh. There were lots of lives were destroyed for that kind of similar reason but no help was offered from the government. You were a genuine victim who faced all those dangerous problems, harassment and torture in Bangladesh. You were unable to find any place to stay safely in your country. So you fled abroad to save your life. You feared that you would be tortured, harmed or even killed by your enemies if you go back to your country.

(e)  On your letter of 17 October 2017, you claimed that after you left Hong Kong, you could not stay at your own home.  You stayed in different places.  And the receipts of different guesthouses where you stayed from 2011 to 2012 were all paid facilities.  They are shown in Annex 1 to Annex 17.”

9.  The Director then went on to consider the rest of the documents included in that letter of 17 October 2017 from the applicant and found most of them not directly related to him or to matters that occurred after the previous claim or relevant to the claim, and concluded that his request for the subsequent claim is based on the same fear of the BNP members in Bangladesh who had threatened to harm or kill him for refusing to join their party, and that he now simply wanted to further elaborate with the additional information the same basis as his previous claim which had already been properly dealt with and disposed of in the process.

10.  The only event said to have occurred to the applicant in his letters upon his return to Bangladesh which may be relevant to his claim or directly to himself was his kidnapping by the BNP supporters led by the same members as before, of which the Director did not find as a significant change of circumstances since the determination of his previous claim, and that such change when taken together with the materials submitted in his previous claim would not give the subsequent claim a realistic prospect of success under section 37ZO(2) of the Ordinance.

11.  On 8 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’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 Director’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 Director’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 Director’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 Director’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 Director 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.  

12.  As held by the Court of Appeal in Ram Chander v Director of Immigration [2018] HKCA 585, while the above statutory provision is applicable to torture claims, by virtue of the administrative provisions governing USM, under its current regime the same constraints are applicable for other non-refoulement claims, in particular when the Director’s guidance note for determination of non-refoulement claims contains the same provisions, and whilst it is open to the Director to adopt measures like the said statutory or administrative constraints to prevent abuse of the system by a claimant who makes repeated claims without merit, the Court would ensure that the application of such constraints in a particular case would not prevent a genuine non-refoulement claim with realistic prospect of success from being properly considered by the Director: per Lam VP in paragraphs 9 – 11 of the judgment.

13.  It is however not the situation with the applicant in the present case for the following reasons.   

14.  Firstly, the grounds put forward by him are simply 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 Director had erred in the decision, or in what way did the Director fail to take into account 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.  Nor do I find any basis or relevancy in any of them to his application.

15.  More importantly, having read the materials presented by the applicant including all the additional documents to support his subsequent claim, including his presentation at the oral hearing of his application now before me in which he merely repeated that his life would still be in danger in Bangladesh, I agree with the Director that the applicant had failed to provide substantial and cogent information to show any significant change of circumstances since his previous claim, and that his subsequent claims are substantially based on the same alleged facts of threats and attacks by the same BNP supporters for his refusal to leave AL to join BNP which had all been duly considered by the Director and the Board in their previous decisions, and again properly assessed by the Director including the additional information provided by the applicant in his later decision of 26 October 2017.

16.  As such the Director was in my judgment correct in coming to his conclusion that the materials presented by the applicant when taken together with those previously submitted by him as well as the findings by the Director in particular as to the availability of state protection and reasonable internal relocation within Bangladesh, that such change if any would not give his subsequent claim a realistic prospect of success.     

17.  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