SHAHIDUL ISLAM v. BRUCE HENRY, ESQ., AND ANOTHER

HCAL 72/2018

[2018] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 72 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of Bangladesh who arrived in Hong Kong on 5 September 2006 with permission to remain as a visitor up to 19 September 2006 when he did not depart and instead overstayed until he was arrested by police on 2 September 2007.  After he was referred to the Immigration Department for investigation, he lodged atorture claim on the basis that if he returned to Bangladesh he would be harmed or killed bycertain members of rival political party Bangladesh Nationalist Party (“BNP”), and upon his torture claim being rejected he lodged a non-refoulement claim on the same basis as before.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Arrapur, Jhenaidah, Bangladesh to a family of supporters of Awami League (“AL”), and after leaving school he worked as a salesman, got married and has four children, and joined AL in 1990 before becoming a local leader of the party with large number of followers.

3.  Due to his popularity in his village, he had become a target of certain members of the local BNP who tried to get him to quit AL to join BNP to which he had always refused, but soon they would start making threats against him, and one day in January 2006 he was ambushed and assaulted by several BNP members with wooden sticks that he suffered bruises all over his body, but of which he did not report to the police as BNP was then the ruling party and he did not think that the police would help him.

4.  On 25 February 2006 the applicant was again assaulted by the same group of BNP members with hammers and iron rods that he was subsequently hospitalized for more than one month.  Again he did not report the matter to the police and instead he fled to Dhaka where he stayed for about six months without any incidents, but as he was still fearful for his life he decided to leave Bangladesh, which he did on 4 September 2006 for China and then Hong Kong where he overstayed and raised his torture claim, and when it rejected on 27 September 2013, he then lodged a non-refoulement claim for which he completed a Supplementary Claim Form on 3 October 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

5.  By a Notice of Decision dated 24 November 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial risk of him being harmed or killed by those BNP’s members upon his return to Bangladesh due to the low intensity and frequency of ill-treatment from them in the past, that BNP is no longer in power in Bangladesh as his party AL has since become the ruling party, that after all these years there is no evidence to suggest that those BNP members would still have any adverse interest in the applicant, that in the absence of any official involvement that 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 162 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Dhaka where he had stayed for six months without incidents before coming to Hong Kong, and where it would be difficult if not impossible for those BNP supporters to locate him.

7.  The applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 22 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted that the applicant used to be active in AL in Bangladesh and had had problems with some BNP members in his area, but the latest reliable and objective COI show that situation in Bangladesh has changed considerably since he left in 2006, that his party AL has since 2008 been in power and that it is the BNP members who are at risk, and hence there is no reason for the applicant to still fear those BNP members, that whatever risk he may face as an AL member in his area can be avoided by availing himself of state protection now that AL is in power, and concluded that he has failed to establish any basis to support his claim for non-refoulement protection.    

9.  On 15 January 2018 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.  

10.  These are however 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.

11.  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 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 theapplicant 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 all being already 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 furthertime 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.  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.

14.  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