Islam S. M. Majharul v. Director of Immigration

HCAL 86/2017
[2018] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 86 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Bruno Chan):  

1.The applicant is a Bangladeshi man who came to Hong Kong illegally when he was arrested on 5 September 2013 and later referred to the Immigration Department on 7 September 2013.  He lodged his non-refoulement claim on 10 September 2013 with the Director of Immigration (“the Director”) on the ground that he feared he would be killed by certain drug dealers after having complained to the police of drug activities in his neighborhood if he were to return to Bangladesh.

2.His claim was assessed by the Director on all 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 (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights (“HKBOR”) Ordinance, 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”). By a Notice of Decision dated 22 January 2016 the Director rejected the applicant’s claim on all grounds.

3.By a Notice of Further Decision dated 17 January 2017 the Director again rejected the applicant’s claim on the ground of BOR 2 Risk.  By then the applicant had already lodged his appeal to the Torture Claims Appeal Board /Non-Refoulement Claims Petition Office (“the Board”) against the Director’s earlier decision with a hearing conducted on 13 January 2017 before the Adjudicator of the Board and attended by the applicant, hence that notice was received by the Board and obviously the applicant only after the hearing, but the Board considered that it was not necessary to arrange a further oral hearing as the applicant had not submitted additional materials on any other absolute and non-derogable rights under BOR 2 Risk to either the Director or the Board.

4.On 20 February 2017 the applicant’s appeal was dismissed by the Adjudicator on behalf of the Board and the Director’s decisions were confirmed.  On 20 March 2017 the applicant filed his application for leave to judicial review both the decisions of the Director and the Adjudicator.     

5.The applicant was born on 24 April 1991 in Bagicha, Khilgaon, Dhaka, Bangladesh.  He is single and has received 17 years of education.  He used to live with his parents in Bangladesh.

6.In his non-refoulement claim the applicant alleges that in 2006 while he was in his first year in university he and his friends namely Lemon, Babu and Shuvo became concerned about illegal drug activities in their neighborhood and started investigation into the drug supply problems.  In June 2006 they formally filed their complaint to the Khilgaon police and provided them with the results of their investigation including the identity of three of the local drug dealers.  In January 2007 the applicant and his friends learnt that the three named drug dealers had been arrested by the police and became concerned for their own safety when the drug suppliers were subsequently released six months later.

7.On 8 May 2008 when the applicant met up with his three friends at the post office, he was struck on the head by someone from behind and lost consciousness.  On 11 May 2008 he was found lying next to a dustbin by the side of a road unconscious and was admitted to a hospital where he later woke up with a serious cut to his right eye which affected his eyesight and for which he had to wear special glasses.  He was told by Shuvo that they were kidnapped by those drug dealers and their gang and were interrogated and beaten by them about their complaint to the police before they were eventually released.  They did not report the matter to the police for fear that the police would not take any further action against the drug dealers after having earlier released them.

8.After his release from the hospital the applicant stayed away from his home village during which the drug dealers kept looking for him at his home, he therefore decided to move to Khilkhet in Dhaka City in March 2009 to avoid them.  There had been no further incidents until 25 August 2010 when he was told that Lemon and Babu had died from a motorcycle accident on a one-way road which caused him to suspect that those drug dealers were responsible and became concerned for his own safety again.  On 30 April 2011 he moved to Cox’s Bazar and worked as a junior technician at the airport.  About a month later he was approached by some men who offered drugs to him which he refused but when they kept pestering him, he became concerned that they may have some connection with those drug dealers back home and decided to move away to stay in his grandfather’s home in Tabaria during which there were no further incidents with the drug dealers.

9.In March 2012 the applicant left Bangladesh for China where he was accepted as a foreign student in a university in Shenyang studying aircraft maintenance and manufacturing.  However in November 2012 he learnt from online news that Shuvo had been murdered and called his mother in Bangladesh who advised him to stay away from the country.  In 2013 the applicant travelled to Xiamen and then to Shenzhen where he stayed for five months, but when he was refused his student visa he entered Hong Kong illegally when he was arrested by the police on 5 September 2013.  Two days later he was referred to the Immigration Department for investigation and on 10 September 2013 he lodged his non-refoulement claim on the basis that if he were to return to Bangladesh he would be killed by drug dealers as they did to his said friends, and that he would not get any protection from the police as the drug problems has spread all over the country that even some members of the parliament are involved in drug trafficking.

10.As noted above the applicant’s claim was assessed by the Director on all applicable grounds including Torture Risk, BOR 3 Risk and Persecution Risk, and later also on BOR 2 Risk on the following structure:

(a) how likely it is that his feared treatment would materialize;

(b) consideration of the claimed BOR 3 Risk;

(c) consideration of whether the claim calls for persecution non-refoulement; and

(d) consideration of the claimed torture risk under Part VIIC of the Immigration Ordinance. 

11.In his assessment the Director noted that although the applicant had indicated his intention to submit various documents in support of his claim such as newspapers cutting and articles on his friends’ death and drug problems in his country, medical report of his alleged injury, and notes of the research carried out by him and his friends on the drug problems which led to their complaint to the police, none of which were ever submitted by him, despite the fact as noted by the Director that he had had all these years to collect and obtain either by himself or his then legal representative through the Duty Lawyer Scheme, or with the assistance of his parents or friends, nor was it the case that he left Bangladesh in such haste or circumstances which would have prevented him from doing so.

12.In the absence of such supporting documents the Director nevertheless proceeded to consider his claim carefully on all applicable grounds and found that his alleged harm based entirely on hearsay and speculation was of such low intensity and frequency from drug dealers that it was considered as low future risk upon his return to Bangladesh, that the availability of state protection would further lower or negate such risk based on objective COI reports, and that internal relocation alternatives are reasonable in his circumstances and readily available to the applicant, and for all those reasons comprehensively detailed in both of his decisions the Director rejected the claim.         

13.In the applicant’s subsequent appeal to the TCAB, the Adjudicator treated his appeal/petition as a rehearing and as noted above conducted an oral hearing attended by the applicant during which he gave evidence and answered questions.  The Adjudicator applied the same legal principles and also considered all the applicable grounds in his careful assessment of the applicant’s claim.  Similarly he found no indication or evidence that those drug suppliers had any connection with the Bangladesh government or the local police who did instead take action to arrest them after the applicant’s complaint.

14.Nor did he find any direct evidence that the applicant was attacked or kidnapped by those drug dealers as he was throughout unconscious and was only told so by his friend which was therefore hearsay and uncorroborated by any other evidence, and that even if he was indeed kidnapped by them, it was according to the applicant only to extract information from him and thereafter there is no evidence that they had done anything further to him anytime thereafter.

15.As for the alleged death of the applicant’s friends, even assuming that it was true as the applicant has never produced any supporting documentary evidence other than mere hearsay, the Adjudicator again found no evidence to indicate that those drug dealers were involved at all, or that they had any connection with those people in Cox’s Bazar who were said to have pestered the applicant with drugs.  As such the Adjudicator rightly found that they are all pure speculation, as he correctly explained in paragraph 45 of his decision:

“ Much of the Appellant’s evidence is based on information related to him by others and amounts only to hearsay. A large part of the Appellant’s case in relation to future risk is based on his own speculation. While hearsay evidence is not of itself inadmissible, the weight which can be given to such evidence is, but its nature, greatly reduced. Hearsay evidence cannot prove the truth of facts asserted by way of such evidence. Speculation can never support any aspect of the Appellant’s case.”

16.While the Adjudicator accepted that COI reports referred to by the Director show that corruption and lack of resources may have been and continue to be major problems adversely affecting the police in Bangladesh, he also noted that the government has taken steps to improve the performance of the police with a Police Reform Program to make police more accountable, disciplined and professional, and to make it easier for members of the public to report corruption or lack of service, which was what the local police did by arresting those drug dealers promptly after the applicant’s complaint.  On the totality of evidence the Adjudicator therefore found that there is no foreseeable, real or personal, risk of the applicant being tortured if he is to return to Bangladesh.

17.The Adjudicator also reached the same conclusion as to the applicant’s claim on all other grounds, and therefore dismissed his appeal and confirmed both decisions of the Director.                   

18.In his application for leave to apply for judicial review both the decisions of the Director and the Adjudicator dated 20 March 2017 now before me, the applicant did not set out any ground or basis in his supporting affirmation, nor did he request for any oral hearing of his application, of which I therefore dealt with on papers only and with rigourous examination and anxious scrutiny of everything before me, I am unable to find any error in law committed by either the Director of the Adjudicator, nor any procedural unfairness or failure to adhere to a high standard of fairness in their assessment of the applicant’s claim on all available grounds.

19.In my judgment the applicant’s claim is simply not reasonably arguable.  As there is no realistic prospect of success I therefore refuse leave for judicial review.

Dated the 30^th day of January 2018.

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