MAHMUD NASIR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 809/2017

[2018] HKCFI 1550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 809 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 on 7 March 2018 and being absent on 23 May 2018;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 39-year-old national of Bangladesh who first entered Hong Kong in January 2004 as a visitor under the identity of Mahmud Nasir and was subsequently convicted of smuggling fake goods and sentenced to six months imprisonment.  A lifetime deportation order was then made against him and he was deported to Bangladesh on 14 May 2004. He then re-entered Hong Kong in June 2006 under a different identity of Shahed Farhad and was again convicted for smuggling fake goods and sentenced to six months imprisonment plus an additional 12 months sentence for breaching his deportation order, and was deported to Bangladesh in June 2007.  The applicant last arrived in Hong Kong on 29 April 2015 in his current identity with permission to remain as a visitor up to 6 May 2015 but he overstayed and surrendered to the Immigration Department on 7 May 2015 and raised a non-refoulement claim on 25 June 2015 on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of rival political party Awami League (“AL”).

2.  The applicant was born and raised in Sreekail in the district of Comilla, Bangladesh where his mother and his wife still live.  After leaving school with a Bachelor’s degree from a local college, he started working in his family’s garment business and eventually ran his own business selling garments.

3.  Whilst in college he became involved in the student wing of the Bangladesh Nationalist Party (“BNP”).  He held no formal position but regularly attended meetings and participated in rallies and protests during which he together with other BNP supporters had had many conflicts with the AL supporters when he had sustained various injuries in brawls and fights with them.

4.  After college in 2001 the applicant was involved in some internal dispute of BNP when two factions of the party clashed during which he was threatened and attacked by the opposing fashion resulting in medical treatment when he decided that it was not safe in Bangladesh and so he fled to Hong Kong using a false identity for his own safety.

5.  Upon his return to Bangladesh the applicant felt he might be in danger after AL won the elections and therefore moved to reside in his relative’s place in Mirpur, and later again returned to Hong Kong under another false identity, and for which he was deported back to Bangladesh in 2007 when he resumed his involvement in BNP.

6.  In 2010 he started to receive dead threats from certain individual members of AL, and after two attacks by them respectively in 2011 and 2012 he began to move around to various places to avoid further attacks in Dhaka, but not long after the election in 2014 when the police came to his mother’s home looking for him over certain false criminal charge lodged by the AL people against him, and when he was beaten up by police in a demonstration organized by BNP supporters, he decided that he was no longer safe in Bangladesh and again came to Hong Kong in April 2015 under his current identity and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 23 November 2015 with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 9 September 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 no substantial grounds for believing that the AL people intend to harm or kill the applicant upon his return to Bangladesh, that state protection would be available 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 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move safely to other areas away from his home district such as Chittagong or Dhaka where he had lived before without any incidents.

9.  By a Notice of Further Decision dated 12 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 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 22 September 2016, and for which he attended an oral hearing on 28 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the evidence of the applicant extremely poor, vague and superficial in relation to the details of his account and was plainly false and disingenuous in relation to his three trips to Hong Kong under three identities, and concluded that nothing he said or presented in evidence can be given any credence whatsoever, that he is not a witness of truth, that he has presented a learned account rather than one which describes events he has genuinely experienced, and that no credence can be attributed to any of his claims which fail on all applicable grounds.

12.  On 26 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1) that the Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3) that the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant.   

13.  These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case, except with what I can discern as his criticism of procedural unfairness over the late provision of the hearing bundle for his appeal just six days before his appeal hearing before the Board, and with the majority of the documents including the Director’s skeleton submission in the bundle were in English that there was insufficient time for him to prepare for his appeal or to find an interpreter to assist him.

14.  Even assuming that the bundle was indeed given to him only on 20 June 2017 as alleged, and I note that he has not produced any documentary proof such as the letter from the Director which accompanied the bundle, with his oral hearing before the Board was scheduled on 28 June 2017 and hence it was eight days and not six days as asserted, before his appeal hearing, it is plain to me that most of the documents including his NCF, his record of screening interviews and the Director’s decision had in fact been made available to him earlier when he still had legal representation and hence he should be well familiar with, whilst he was assisted by an interpreter at his appeal hearing during which he never raised any issue over the late provision of the hearing bundle nor made any request for further time to prepare for his appeal.  In the circumstances I do not see anything amiss arising from the provision of the hearing bundle.

15.  As for his complaint that the Board has significantly relied on source of news not officially recognized or is simply hearsay or outdated which he said led to the Board making groundless speculations that it would be safe for him to return to Bangladesh, again the applicant did not provide any particulars or specifics as to which COI were so as alleged, and upon close examination of those listed and referred to by both the Director and the Board, I am unable to find any basis for the applicant to make such assertions, or for that matter any merits in any of his grounds referred to above.

16.  I should also note that after the applicant failed to attend the oral hearing earlier requested by him in his present application, for which he did not provide any explanation but he then went on to submit certain documents to court including some local newspapers clippings all in Bengali without translation, and poor copies of what appear to be some court documents, with translation, issued out of certain senior judicial magistrate court in Bangladesh of two civil cases filed by a certain plaintiff against a list of people over certain incidents involving assaults and violence.  Given the absence of any accompanied explanation or elaboration from the applicant as to the relevancy of these documents to his claim and his unexplained absence from his oral hearing for his leave application, I fail to see why these documents should be accepted or considered by the court at this stage of the proceedings.   

17.  The fact is that the applicant’s claim was rejected essentially on his credibility by the Board for its detailed analysis and reasons set out in paragraphs 28 – 42 of its decision, and as it been held that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make such evaluation based on the evidence available to them, and the court will not usurp their role as primary decision makers, and that judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246.     

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