HOSSEN DALOYEAR v. KEVIN ANTHONY BROWNE, ESQ., AND ANOTHER

HCAL 1028/2017

[2018] HKCFI 1964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1028 of 2017

 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 21 December 2013 and was arrested by the police on 15 February 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 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 Yousufpur, District Comilla, Bangladesh.  After finishing school he helped his father in farming and also worked part‑time in a grocery store.  In 1998 he started to support Jamat Islam Party (“JIP”), and became a member of Shibir a student wing of JIP in 2006, and in 2009 he was made its local president.

3.  One evening in 2008 while he was chatting with some fellow members of Shibir at the local market, they were approached by members of AL who demanded that they should leave JIP, and when the applicant and his friends ignored them, they were assaulted with punches and kicks and were warned that this would continue to happen to them if they still refused to leave their party.

4.  After that assault the applicant went to stay at a friend’s place in Chittagong during which he received some threatening calls from AL members, and one day while he was having lunch in a restaurant, he was approached by some AL members who demanded him to join their party and when he refused, he was assaulted and was cut in his left arm.

5.  About two weeks later the applicant was again approached by some AL members in the street and was assaulted when he still refused to yield to their demand, and was warned that next time they would kill him.  Fearing for his safety the applicant therefore fled to Dhaka to take shelter at another friend’s place.  However, after eight months had passed without any incidents, the applicant started to receive threats from AL members and was ambushed by them in the street when he was cut in his left arm.  This was followed by two more attacks when the applicant also received stab wounds in his stomach and right thigh.

6.  By late 2012 the applicant decided that it was not safe to remain in Bangladesh and therefore went to India where he stayed for a few days before returning to Bangladesh in November 2012, and then on 6 December 2012 he departed again for China where he stayed for about a year before sneaking into Hong Kong in December 2013 and subsequentlylodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 November 2015 with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 11 March 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 found inconsistencies and contradictions in the applicant’s account of events in Bangladesh given in his NCF and his interviews that the overall credibility of his claim was not acceptable, that even if those threats in his claim were true 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 169 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Khulna, Barisal, Rajshahi or Sylhet.  

9.  By a Notice of Further Decision dated 23 June 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”).

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 24 March 2016, and for which he attended an oral hearing on 29 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 December 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 evidence wholly unreliable with glaring contradictions between what he stated in his NCF, his interviews at the Immigration Department and at his hearing before the adjudicator, and is inherently implausible such as the various attacks at different places by different AL members who were all able to recognize him, or that he held a position in Shibir in 2003 when he was then aged only 15, or that he was still at school when he became its president, and concluded that there is no substantial ground for believing that the applicant would face a genuine and substantial risk of being subjected to any ill-treatment if refouled to Bangladesh.

12.  On 7 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 himself 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 his 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 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.

14.  At his oral hearing before me the applicant did not elaborate any of these grounds but merely repeated his assertion that situations back home in Bangladesh have still not improved and that it would still be dangerous for him to go home.  However, on the same day after the hearing he submitted a letter indicating that he was in the process of seeking assistance from the Legal Aid Department in these proceedings and requested that his leave application be adjourned pending the outcome of his legal aid application.  Given the fact that the Court has since received notice from the Legal Aid Department that the applicant’s application has been rejected, I do not see any reason for any further delay to these proceedings.

15.  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.

16.  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 were already made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his appeal hearing before the Board he never raised any issue or requested for further time to enable him to properly 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.

17.  The fact is that the applicant’s claim was rejected by the Director and the Board essentially on his credibility for the detailed reasons and analysis set out in paragraph 15 of the Director’s decision and paragraphs 63 – 79 of the Board’s decision that any attempts to challenge or criticize any improper use or reliance of COI by the Director or the Board in their assessments of the general situations in Bangladesh seems to me futile and pointless, as it is a 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 their clear findings against the core of the applicant’s claim that he ever held any important position in his political party which led to all those alleged attacks which eventually forced him to leave Bangladesh to seek protection in Hong Kong, I am unable to find any basis or merits in any of those grounds of the applicant. 

18.  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.

19.  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