Miha Md Limon v. Torture Claims Appeal Board

HCAL 184/2017

[2018] HKCFI 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 184 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:

1.The applicant is a 26-year old Bangladeshi male who entered Hong Kong illegally and was arrested by the police on 11 July 2013.  He was then referred to the Immigration Department for investigation on 13 July 2013 where he raised a torture claim and requested for non-refoulement protection for fear that he would be harmed and killed by rival political party and by the local police if he were to return to Bangladesh.

2.The applicant’s case is that he was born in Gopibagh, Dhaka, Bangladesh, and after graduating from college in 2011 with an accounting degree, he performed accounting work in a company and became the campaign secretary of the Bangladesh Nationalist Party (“BNP”) in 2012 involving in work for the party including hanging banners and posters during elections and attending meetings and rallies.

3.One night in April 2013 he was invited to the office of rival political party known as Awami League (“AL”) where some of its members tried to persuade him to leave BNP to join AL, but he left without giving his reply.  A few days later he was again invited to the office of AL and when he rejected their invitation to join them, he was assaulted by four or five members of AL until he fell to the ground.  He did not go to the hospital or the police as he was subsequently advised by the BNP senior members that they would talk to the AL people to sort things out.  He then went on a trip to India.

4.In late April 2013 he attended a general meeting of BNP at Paltan, Dhaka, during which about 300 people from AL and 200 police arrived at the meeting shouting abuses and hurling things at the BNP people, with many of them being injured and arrested by the police, but the applicant managed to escape from the scene.  A few days later some policemen came looking for him at his home, and when he was not there they told his mother that he had been accused of serious criminal offenses and wanted him for investigations. After they left he was advised by his mother not to go home.  The applicant therefore first fled to Dhanmondi to hide in his friend’s place, then to his uncle’s place in Sylhet, and when the police came looking for him there, he fled to his aunt’s place at Comilla where he stayed until July 2013 when he heard that the police were also looking for him there, he decided to leave Bangladesh on 9 July 2013 for Mainland China before arriving in Hong Kong on 11 July 2013 where he subsequently lodged his non-refoulement protection with the Immigration Department.

5.On 18 September 2013 the applicant completed his TCF with the assistance of the Duty Lawyer Service and on 2 October 2013 was released on recognizance pending the processing of his application by the Immigration, during which his two scheduled interviews had to be cancelled when he reported not feeling well through his legal representative and was instead asked to submit his answers to questions raised by the Immigration Department of his claims and that his interview finally took place on 23 January 2014 after his answers had been submitted by his legal representative when he confirmed that he would be killed by the AL people if he were to return to Bangladesh, and later he also claimed that he had been told by his friend that his parents were shot and killed at home in April 2014 but no report was made to the police as his relatives were all afraid to be involved.  He suspected that his parents were murdered by the AL people.            

6.By a Notice of Decision dated 8 December 2014 the Director of Immigration (“the Director”) dismissed the applicant’s claim on all then available grounds including torture risk 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 (“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”).

7.In his detailed decision the Director noted that the applicant’s claim was based entirely on his bare assertion without the support or corroboration of any documentary evidence, such as evidencing his membership and involvement in BNP and his parents’ death which he had earlier agreed to submit but never did, and nevertheless on the basis of his assertion, the Director found that objective COI indicates that internal relocation is both available and reasonable for him in the circumstances to return to live and work safely in other cities or districts of Bangladesh which has a huge population of 166 million in a vast territory of more than 130,000 square kilometers.        

8.On 19 December 2014 the applicant filed his appeal to the Torture Claim Appeal Board (“the Board”) against the Director’s decision, and after conducting an oral hearing on 28 July 2015 attended by the applicant but he refused to testify, and on 20 December 2016 the Board dismissed the appeal and confirmed the Director’s decision.

9.In the Board’s decision the Adjudicator also correctly pointed out that the applicant’s claim was based entirely on his bare assertion unsupported by any documents despite having legal assistance and representation, and that at the oral hearing on 28 July 2015 when he was presented with the opportunity to advance his case before the Board, he somehow chose not to give any evidence or to answer any questions from the Board, when the burden clearly rest on him to prove that there are substantial grounds for believing that he would be in danger returning to Bangladesh and that why in the circumstances internal relocation to other cities or districts of Bangladesh would not be reasonable to him.     

10.By a Notice of Further Decision dated 5 April 2017 the Director again rejected the applicant’s claim on all applicable grounds including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) in the absence of any additional facts from the applicant after having invited him to do so by an earlier letter dated 14 March 2017.  There was no appeal by the applicant against that further decision. 

11.On 5 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but in his supporting affirmation of the same date he failed to set out any grounds except exhibited his earlier four-page answers dated 9 December 2013 submitted to the Immigration Department in respect of their questions raised over his claim when he was unable to attend the earlier interview scheduled by the Department referred to above.  There is therefore simply no ground at all presented by the applicant in support of his leave application, and upon rigorous examination and anxious scrutiny, neither do I find any error in law or procedural unfairness in the decision of either the Director or the Board nor any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.

12.In the premises and for the reasons given, I am not satisfied that the applicant’s intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.

Dated the 8th day of February 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