SHAMIM v. FRASER SYME, ESQ. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1017/2017

[2018] HKCFI 1591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1017 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 dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions,

(5)   Liberty to apply.

Observations for the Applicant:

1.  The applicant is a 36-year-old national of Bangladesh who last entered Hong Kong illegally on 22 January 2014 and was arrested by the police on 23 January 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 members 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 Pir Kashimpur, District Comilla, Bangladesh where his parents and siblings still live.  After leaving school he assisted his father in farming, and joined the political party Bangladesh Nationalist Party (“BNP”) in 2001 in which his father was a party leader in the village and where the applicant also became the office secretary and a youth leader of the party.

3.  Starting around 2003 there were many clashes between supporters of rival parties AL and BNP, and there were occasions when the applicant’s father was approached by AL members to join their party and when he refused he was threatened and attacked by their supporters, and when AL became the ruling party in 2008 their suppressions and attacks against BNP members became even more frequent.

4.  One day in 2008 some AL members approached the applicant’s parents demanding the applicant to join their party and when they refused they threatened to harm them and the applicant. As a result the applicant took shelter at his friend’s place in Village Sreekail while his father was arrested by the police on some false charges filed by the AL people and was detained for two months.

5.  When the applicant heard that the AL people were looking for him, he felt it was not safe to be in Bangladesh and so in March 2008 he departed for China and sneaked into Hong Kong until he was arrested by the police in late 2009 when he was working for a fellow countryman and was subsequently repatriated to Bangladesh.

6.  After returning to his home village the applicant resumed his membership in BNP and went back to work in his father’s farming.  However, one day in March 2013 when he was on his way to a party’s meeting, he saw 20 to 25 supporters of AL carrying hockey sticks and other weapons approaching the BNP meeting place, he therefore turned around and ran back home, but his father and other members of BNP were subsequently arrested by the police for fighting with the AL supporters and were released only after paying bribe money.

7.  In June 2013 the applicant was arrested by police on a false charge of being involved in a bomb incident, and after his father had hired a lawyer for him and bailed him out, the applicant decided again that it was not safe for him to remain in Bangladesh and therefore departed in January 2014 for China, and from there he sneaked into Hong Kong when he was arrested and was convicted for illegally entering and remaining in Hong Kong and sentenced to 18 months imprisonment.  Upon his release from prison he lodged his non-refoulement claim and completed his Supplementary Claim Form (“SCF”) on 11 March 2016 with legal representation from the Duty Lawyer Service. 

8.  By a Notice of Decision dated 11 May 2016 the Director of Immigration (“the Director”), in excluding his torture claim already dismissed before, rejected the applicant’s claim on all the applicable grounds including 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”).

9.  In his decision the Director found on the facts of the applicant’s case that the level of risk of harm from the AL people upon his return to Bangladesh as low as his claim is essentially based on hearsay and unsupported by reliable evidence or real personal experience and that he was never directly subjected to any physical threats or harm from the AL people during all his time in Bangladesh, that state protection would be available to him if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 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 safely to other areas away from his home district such as Dhaka or Chittagong without any fear of risk of harm from the AL people.

10.  By a Notice of Further Decision dated 13 March 2017 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”).

11.  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, for which he filed his appeal on 23 May 2016, and for which he attended an oral hearing on 18 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the applicant not a credible witness due to the multiple material inconsistencies in his evidence and his non-persuasive explanations in particular as to his role and that of his father in BNP, and rejected his claims that he was ever a youth leader with BNP or its youth wing, or that his father was a leader of BNP, or that the supporters of AL were after them with threats to force them to join their party, or that there were any false charges against him or his father, and concluded that the applicant has fabricated all these claims in their entirety so as to create a background upon which to apply for non-refoulement protection.

13.  On 6 December 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.  

14.  By then the applicant was already more than four months late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that such an application be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made, which means on or before 28 July 2017 for the applicant’s application but which he did not file until 6 December 2017, and for which he has not made any application for extension of time or offered any explanation until at the hearing before me when he claimed not being aware of that rule.  

15.  A four-month delay certainly appears to me inordinate in the absence of any good reason, whilst a careful examination of his proposed grounds does not reveal any merits in his intended challenge either, as they are all 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.

16.  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 mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

17.  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 SCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were already made available to him as early as in January 2016 when he still had legal representation (see paragraph 7 of the Director’s first decision), whilst his SCF 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 properly prepare for his appeal at his oral hearing to the adjudicator.  Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

18.  As for his complaint about the adjudicator rejecting his claim despite the documentary proof of his membership in BNP, the adjudicator did explain in details in paragraphs 33 – 48 why it was so, and as it is well established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers.  With the adjudicator’s clear findings of multiple material inconsistencies and non-persuasive explanations in the applicant’s evidence and his answers to the many questions put to him at the hearing as to his role and involvements in BNP and those of his father as well, I do not find any basis or reasons to interfere with the Adjudicator’s findings or decision.

19.  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.  There are therefore no merits at all in his substantive application.

20.  For these reasons I am not satisfied that there is any good reason to extend time for the applicant to proceed with his application for judicial review which is accordingly hereby dismissed.

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