Rahman Mohammad Mizanur v. Torture Claims Appeal Board

HCAL 913/2017

[2018] HKCFI 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 913 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 31-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 2 December 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 4 December 2013 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”) for refusing to leave his Jamaat-e-Islami Party (“JeI”) to join them.  He has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in District Munshiganj, Bangladesh where his parents and sister still live.  After finishing primary school the applicant started a shop in 2009 to make his living and joined JeI in 2010 as a member organizing meetings and promotions of the party in his local district.

3.In about mid-2011 he was promoted to be the publicity secretary of the party, but members of AL started to approach him at his shop to persuade him to leave JeI to join AL, and when he refused, they started to harass and threaten him, and of which he never reported to the police as AL was the ruling party.

4.By 2012 the harassments and threats from the AL supporters became so intensive that they even threatened him in the streets that they would kill him if he still refuse to join their party, which drove him to take shelter at his uncle’s place in Narayangonj where he stayed for six months, but when he started to receive further death threats from the AL supporters, he was advised by his uncle to leave Bangladesh for his own safety, and so he did on 23 April 2013 when he flew to Mainland China, and from there subsequently sneaked into Hong Kong and lodged his non-refoulement claim.

5.By a Notice of Decision dated 24 May 2016 the Director of Immigration (“the Director”) rejected his 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”).

6.In his decision the Director assessed that even on the applicant’s own case that the risk of harm from the AL supporters upon his return to Bangladesh as low as they were all just verbal threats without any actual physical harm being inflicted on him, that in the absence of any evidence that the state or government was involved in the threats of these AL supporters that state protection would be available to the applicant if resorted to, that objective Country of Origin Information (“COI”) show on-going reforms with positive results in police efficiency and in avenues for justice in Bangladesh, and that 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 to relocate to cities away from his home district such as Dhaka where he can live and work safely free from any threats of the AL supporter. 

7.By a Notice of Further Decision dated 31 July 2017 the Director again rejected the applicant’s 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”) upon receiving and considering his further submission that the local police in his home district in Bangladesh had been harassing his father due to the influence of AL and that they were still looking for the applicant, but the Director concluded that on the facts the applicant has failed to establish his claim under BOR 2 risk. 

8.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 on 6 June 2016 and for which he attended an oral hearing before the Board on 5 September 2017 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 Director’s decisions.

9.In its decision the Board found the applicant’s evidence about his claim confusing, inconsistent and far from convincing, and for the detailed analysis and reasons set out in paragraphs 18 – 70 of the decision that his accounts of being a formal member or supporter of JeI or that he was ever involved in any political activities in Bangladesh or any of his asserted threats from the AL supporters cannot be accepted as true, and concluded that there are no substantial grounds to believe that he faces any real risk of harm if he returned to Bangladesh, and therefore not entitled to non-refoulement protection.

10.On 20 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, in which he stated the following grounds for his intended challenge:

(1) that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement;

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

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

(4) that the Board failed to apply the high standards of fairness owed to a self-represented claimant.

11.These are all very broad and vague general statements and in the absence of any particulars or specifics provided by the applicant, and the burden is on him to do so, it is simply not possible to know in what way or manner that the Board acted unreasonably or unfairly procedurally or made any error of law, but from the applicant’s supporting affirmation of the same date, his complaints of procedural unfairness in his appeal before the Board appear to be essentially based upon the following:

(1) that the hearing bundle which were all in English was provided to him without giving him sufficient time to prepare for his appeal before the Board,

(2) that the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country.  

12.According to the applicant the hearing bundle was provided to him by the Director on 29 August 2017 which were only six days before the hearing of his appeal before the Board on 5 September 2017 with an intervening weekend in between, and as the documents were all in English that within such a short time that he was unable to find an interpreter that he could afford, and hence it was procedurally not fair that his appeal was dismissed.

13.Even assuming that he indeed only received the hearing bundle six days before the hearing, the applicant must by then be already well familiar with most of the documents including his non-refoulement claim forms, records of his screening process at the Immigration Department and the decisions of the Director, all of which either were prepared on his behalf or which he has seen before while he was having legal representation from the Duty Lawyer Service.

14.As regard any difficulty he may have getting assistance from interpreter, I note that his Form 86 is in English which he signed without requiring any interpretation, and it is clear that his attendance before the Board was assisted by an interpreter during which he never raised any of the above complaints to the adjudicator for the Board.  In the circumstances I do not find anything amiss arising from his complaint over the hearing bundle, nor do I see any merit in such complaint.

15.As for his complaint over the Board’s reliance on unofficial or outdated COI in its assessment of his safe return to Bangladesh, the applicant has failed to put forward any particulars or specifics in support of such assertion, and having examined those listed and relied by both the Director and the Board in their decision, I do not find any basis or merit in this complaint of his either.

16.In the premises and having considered 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.

17.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.

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