ALI MOHAMMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 861/2017

[2018] HKCFI 1313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 861 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 refused.

Observations for the Applicant:

1.  The applicant is a 39-year-old national of Bangladesh who arrived in Hong Kong on 16 April 2013 with permission to remain as a visitor up to 30 April 2013 when he did not depart and instead overstayed until 21 May 2013 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 7 March 2014 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by supporters or 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 Uttar Chapain Lalbag, Dhaka, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving school he worked as a salesman and later got married with two children.  In 1996 he joined BNP as a member organizing rallies, distributing leaflets and recruiting new members for the party.

3.  One day in September 2007 while the applicant was on his way home with a fellow BNP friend, they were stopped by several AL supporters who attacked his friend with a machete.  Upon seeing the wounds suffered by his friend the applicant fainted.  Upon regaining consciousness the applicant learnt that his friend had died from his wounds, he therefore reported the attack to the police but they failed to take any action.  Fearing for his life the applicant therefore hid in his friend’s place in Village Bashtola for more than a year before moving to Rampura Bonoshri in 2009 with his wife and children where he started his own business and for the next few years he had met no further incidents from the AL supporters.

4.  However, one day in 2013 several men came into the applicant’s shop who claimed to be members of AL and demanded donations from him for their party, to which he paid a few thousand Bangladesh Takas.  A month later the same men returned and demanded the applicant to pay ten thousand Takas every month in order to be allowed to continue to carry on his business, and when the applicant said he could not afford to do so, the men told him to close his shop otherwise he would be killed. When the applicant told his friend about the extortion, his friend advised that he should leave Bangladesh for his own safety, and so the applicant departed Bangladesh and arrived in Hong Kong on 16 April 2013 when he subsequently lodged his non-refoulement claim, and for which he later completed his Non-refoulement Claim Form with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 22 December 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBOR”) being violated including right to life under Article 2 of the HKBOR (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 the 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 determined that the alleged ill-treatments of the applicant did not meet the minimum level of severity required to justify international protection, that the low intensity and frequency of past ill-treatments from AL members do not suggest that they have any desire in pursuing him after all these years, that state protection would be available to him if resorted to, and that reliable Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in other areas of Bangladesh where the applicant can move to avoid any threats from the AL members.  

7.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 November 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the applicant to be a very poor witness, that his evidence vague, evasive and unreliable, and that his claims amounted to little more than a series of bald assertions with multiple material contradictions for which he failed to provide any satisfactory explanations as set out in details in paragraphs 54 – 70 of the decision, and concluded that he has failed to establish a case in respect of any of the applicable grounds warranting his protection from refoulement to Bangladesh.

9.  On 9 November 2017 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 in the consideration of his case;

(2)  irrationality in the adjudicator’s failure to take proper account of relevant COI and for improper selection or reliance on irrelevant or outdated COI in the unfair dismissal of his claim;

(3)  irrationality in the adjudicator’s failure to properly evaluate and make finding of fact of consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  irrationality in the adjudicator’s failure to properly analyze whether state protection exist in Bangladesh;

(5)  irrationality in the Board taking into account of irrelevant consideration or inaccurate facts in the consideration of his claim;

(6)  procedural impropriety for failing to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness for the adjudicator to apply the incorrect standard of proof;

(8)  procedural impropriety/unfairness in the lack of or insufficient legal representation for him from the Duty Lawyer Service; and

(9)  procedural impropriety/unfairness in the adjudicator’s failure to arrange an oral hearing for the applicant.   

10.  These are all very broad and vague assertions containing a few pages of key words and phrases but without any particulars or specifics or elaborations by the applicant as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way was his legal representation from DLS insufficient or how he may have been so prejudiced.

11.  Furthermore, given the fact that the applicant’s claim was rejected essentially on his credibility, any attempt to challenge the Board’s decision on the basis of its reliance on COI to assess the general situations in Bangladesh appears to me both pointless and futile, while his complaint of not calling for any psychological or psychiatric evaluations in the process is unsupported by any medical reasons, and that it is plainly wrong for him to claim that no oral hearing was arranged for his appeal before the Board when in fact he did attend an oral hearing on 28 August 2017 during which he was able to give further evidence and answered questions from the adjudicator.  I find none of these grounds to have any merits or basis at all.

12.  In the premises and having considered 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.

13.  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