ALIM ABDUL v. CHRISTIAN PATRICK CARNEY, ESQ., AND ANOTHER

HCAL 875/2017

[2018] HKCFI 2201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 875 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 51-year-old national of Bangladesh who entered Hong Kong illegally on 14 July 2014 and was arrested by police on 15 July 2014.  After being 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 Bibondi, Sreenagar, Munshiganj, Bangladesh to a family of supporters of the political party Bangladesh Nationalist Party (“BNP”). After leaving school he worked as a farmer in his home village, got married with two children, and also joined BNP as an ordinary member regularly attending their meetings and rallies.

3.  One day in late 2013 after attending a BNP meeting in a neighboring village, the applicant and some of his fellow members were confronted by a group of AL supporters who threatened them that they should stop holding similar meetings in future.  A few months later when the applicant ran into the same group of AL people on the street, he was threatened by them that he should quit BNP otherwise he would be killed.  The applicant did not report these threats to the police on either occasion as AL was the ruling party and he did not believe that the police would be willing to help him.

4.  However, the threats escalated about one month later when a group of AL people came to his home looking for him, and when they were told by his wife that he was not in the house, they threatened that they would kill him if he continued to work for BNP, and some weeks later these AL people returned and again when they were told that the applicant was not in the house, they made the same threats that if he continued to ignore their demand, he would be killed.

5.  Afterwards when he was advised by his BNP leaders that he should hide from these AL people, the applicant decided that it was no longer safe for him in Bangladesh, and so on 11 July 2014 he departed for China, and from there he sneaked into Hong Kong where he was subsequently arrested and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 22 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 26 May 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim found no substantial grounds for believing that his perceived risk of harm from the AL people upon his return to Bangladesh is real or foreseeable due to the low intensity and frequency of past ill-treatment from them, that reasonable state or police protection would be available to him 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 168 million people spread across a vast territory of more than 140,000 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 Chittagong where it would be difficult if not impossible for those AL people to locate him.  

8.  By a Notice of Further Decision dated 2 August 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”).

9.  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, the notice of which he filed his appeal on 8 June 2016, and for which he attended an oral hearing on 4 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board upon hearing the applicant in evidence found serious inconsistencies and confusion about the key aspects of his claim that it did not accept that he was a member or supporter of BNP, or that he was ever involved in any activities of political nature in Bangladesh, or that he engaged in campaign or party matters such as meetings or rallies at any time in Bangladesh, or that he was a person of adverse interest to the AL party or its members or supporters, or that he was ever subjected to any adverse treatment by them in Bangladesh, and concluded that his non-refoulement claim fails on all applicable grounds and is therefore not entitled to non-refoulement protection in Hong Kong.   

11.  On 13 November 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.  

12.  These are however 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.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  The only other complaint which the applicant appears 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.

14.  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 NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were 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 being given to the applicant in his appeal before the Board.

15.  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.

16.  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