RANA MOHAMMAD MASUD v. SYDELLE MULING, ESQ., AND ANOTHER

HCAL 87/2018

[2018] HKCFI 2097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 87 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 31-year-old national of Bangladesh who entered Hong Kong illegally on 21 December 2015 and surrendered to the Immigration Department on the following day on 22 December 2015 and subsequently lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the supporters of rival political party 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 Moshakhali, Hossenshahi, Gaffargaon, Mymensingh, Bangladesh.  After leaving school he worked as a tailor in his own tailor shop, got married with a son, and became a supporter of Bangladesh Nationalist Party (“BNP”) regularly attending their local meetings and rallies where there were frequent clashes with AL supporters.

3.  In January 2014 during BNP’s election campaign, the applicant was frequently harassed by AL supporters in his home village, and on one occasion in March 2014 a group of AL supporters came to his shop armed with sticks and knives and threatened him to close down his business and to leave BNP or otherwise he would be killed, and they proceeded to drag him out into the street and beat him with sticks and punches until they were intervened by people on the street.

4.  After the attack the applicant sought medical treatments from the village doctor but did not report the assault to the local police as AL was the ruling party and he did not think the police would help him, he therefore fled with his family to his in-laws’ home in Kuril, Dhaka, but when he heard that the same group of AL supporters was looking for himin Kuril, he was arranged by his father-in-law to take shelter at his friend’s place in Khilkhet where he found a job working in a factory, and was later advised to leave Bangladesh for his own safety, which he eventually did on 12 December 2015 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 24 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 29 June 2017 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 and 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 grounds for believing that there will be any real and substantial risk of him being harmed or killed by the local AL supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them and that there is no reason why he as merely a supporter with no official position in BNP that he would be so targeted by the AL people, 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 156 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 it would be difficult if not impossible for the AL supporters to locate him.   

7.  On 13 July 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 January 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found significant inconsistencies in the applicant’s claim between the information given by him in his NCF and his evidence at the oral hearing before the Board that it did not accept that he being just a supporter of BNP had been targeted by the AL supporters, or that he had been harassed or threatened by them as asserted, and rejected the fundamental basis of his claim that he faces any form of harm upon return to his home country.   

9.  On 18 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, 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 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 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, record of his screening interview and the Director’s decision 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 he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal to 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