Md Awlad Hossain v. Wesley Wong, Esq

HCAL 873/2017

[2018] HKCFI 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 873 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 30-year-old national of Bangladesh who entered Hong Kong illegally and was arrested by the police on 2 September 2013.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim with the Department on 4 September 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by members of his rival political party Awami League (“AL”) in his home district for refusing to join that party.  On 23 October 2013 he was released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Munshiganj District, Bangladesh.  After leaving school he started a furniture business and joined the Bangladesh Nationalist Party (“BNP”) in 2011 as an ordinary member attending meetings and participating in their promotion activities.  However, since 2011 members of AL in his home district had been harassing him to leave BNP to join their party, and when he refused they would first threaten him verbally and later started to assault him with fists and sticks, for which the applicant had initially reported to the police but nothing was done as he believe was due to the fact that AL was then the ruling political party.  Finally one day in 2012 when he ran into some AL members in a neighboring village, and when they started firing shots at him, he became so frightened that he was advised by his mother to leave Bangladesh for his own safety.

3.The applicant therefore closed down his business in Dhaka and left Bangladesh for China but when he was told there was no system there for him to apply for asylum and that he should go to Hong Kong instead for protection, he therefore returned to Dhaka for his agent to make the necessary arrangements for him to come to Hong Kong, during which he did not encounter any further threats from the AL people.  Eventually he left Bangladesh again in 2013 for China and from there he sneaked into Hong Kong where he subsequently lodged his non-refoulement claim.  

4.By a Notice of Decision dated 8 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).

5.In his decision the Director assessed on the facts as asserted by the applicant that there are no substantial grounds to believe that his claimed risk of harm from the AL people upon his return to Bangladesh would materialize given the low intensity and frequency of ill-treatments from them in the past as indicative of the unlikelihood of such risk in future, that objective Country of Origin Information (“COI”) show that the Bangladesh government has taken positive measures to improve police efficiency and state protection for the public, and that internal relocation alternatives are available for the applicant to safely return to Bangladesh with a large population of 169 million people spread over a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for him as an abled-bodied young man with working experience to relocate to other areas away from his home district and any threats from the AL people.  

6.By a Notice of Further Decision dated 14 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any 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”).

7.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 file don 18 July 2016 and for which he attended an oral hearing on 6 October 2017 before the Board.  On 6 November 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

8.In his decision for the Board the adjudicator upon hearing the applicant found his account of the threats from the AL people lacked sufficient details, that it was inconsistent and ultimately unreliable, that objective COI show that state protection is available if resorted to upon his return to Bangladesh, and that he can relocate to other parts of Bangladesh to avoid the small group of AL people in his home village.

9.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 he provided eight grounds for his intended challenge which can be summarized as follows:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI in his assessment of his claim; 

(2) irrationality in the adjudicator’s failure to take into account of or place proper weight in the relevant COI or being selective of or wrongly reliance on them;

(3) irrationality in the adjudicator’s failure to make proper finding of consistent violations of human rights in Bangladesh;

(4) irrationality in the adjudicator’s failure to make proper analysis of the efficiency of state protection in Bangladesh;

(5) irrationality in the adjudicator taking into account of irrelevant or inaccurate facts when assessing his claim;

(6) procedural impropriety in failing to call for psychological or psychiatric evaluations or 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 in the lack of or insufficient legal representation for the applicant under the Duty Lawyer Service.

10.These are all broad and vague assertions by the applicant without providing any particulars or specifics to support his criticisms of procedural unfairness or irrationality in the adjudicator’s decisions, with the first four grounds relating to COI of which the applicant could have easily but failed to point out or identify at all from the listed COI or from any of his own sources of information as to which of them were inaccurate or irrelevant, or that in what way or manner was the adjudicator being selective or guilty of placing too much or too little weight in his consideration of his claim.  It is simply not sufficient for the applicant to make such vague assertion without any specifics as clearly the burden is on him to substantiate his criticisms.  Upon considering those COI referred to and relied on by both the Director and the Adjudicator, I do not find any error or unfairness in their reliance of such COI and that there is simply no merit in the applicant’s complaints under grounds (1) to (4).  

11.The same can be said about his ground (5) when again he has not provided any particulars or specifics as to what irrelevant or inaccurate facts that the adjudicator had taken into account.  As such there is no basis for this complaint of his.

12.As for ground (6), again in the absence of any evidence to suggest that such psychological or psychiatric evaluations were necessary and have ever been requested by him, there is simply no justification in this complaint of the applicant.

13.The two remaining grounds are also without merits or basis, as clearly the applicant had been able to present his case fully before the Director with the assistance of his legal representation throughout that stage of his claim, and of which he never raised any issue or complaint at any time during his appeal to the Board including during his personal attendance at the oral hearing before the Board.  I am simply unable to find any merit or basis under these two grounds of the applicant.

14.In the premises and upon rigorous examination and anxious scrutiny of both the decisions of the Director and the Board, I do not find any error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 27^th day of April 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