Sumon Mia v. Torture Claims Appeal Board

HCAL 914/2017

[2018] HKCFI 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 914 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 39-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 9 March 2008.  After he was referred to the Immigration Department for investigation, he raised his non-refoulement claim on 22 March 2008 that if he returned to Bangladesh he would be harmed or killed by the local leader of rival political party Awami League (“AL”) in revenge for extorting money from him.  The applicant has since been released on recognizance pending determination of his claim. 

2.The applicant was born and raised in Village Malir Pathar, Panchashar, Munshiganj District, Dhaka, Bangladesh.  After leaving school he worked in the mobile phone accessory shop owned by his uncle in the village.  In 1998 he joined Jubo Dal, the local youth wing of the political party Bangladesh Nationalist Party (“BNP”) of which his family members were all supporters, and in Jubo Dal he mainly assisted in organizing meetings and rallies in his home village.

3.One day in 2005 the applicant together with two other members of Jubo Dal were told by the party president to collect money from JU the village head and also the AL leader in the village, and when JU appeared hesitant he was threatened by one of the applicant’s group and eventually handed over 300,000 Taka to them.  Then one day in 2007 when the applicant heard that JU had filed an extortion case to the police against him and other members of his group, he left his home village to avoid JU and the police by staying with his relatives at various places in Comilla, Dhaka and Sirajgonj until February 2008 when he decided to leave Bangladesh for his own safety for Hong Kong where he subsequently lodged his non-refoulement claim with the Immigration Department with legal representation under the Duty Lawyer Service.

4.By a Notice of Decision dated 23 November 2016 the Director of Immigration rejected his claim 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 under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 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 on the facts of the applicant’s own case assessed the risk of harm from JU upon his return to Bangladesh as very low in the absence of any evidence of any threats or ill-treatments from JU or his AL people to him in Bangladesh prior to his departure, that it was a local private dispute between him and JU without any involvement of the state or police, that he was able to leave Bangladesh freely without any problem suggests that he may not still be wanted by the police despite the alleged extortion case filed by JU, that objective Country of Origin Information (“COI”) show that state protection would be available to him if resorted to as the government of Bangladesh has taken practical steps to conduct and improve the effectiveness of the police, and that internal relocation alternatives are available in Bangladesh with a large population of 166 million people spread over a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant to return to other areas away from his home village such as Chittagong free from any threats from JU or his AL people.

6.The applicant appealed to the Torture Claims Appeal Board (“the Board”) against that decision and attended an oral hearing before the Board on 20 September 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  His appeal was dismissed by the Board on 3 November 2017 which also confirmed the decision of the Director.

7.In its decision the Board agreed with the Director’s assessment of the low risk of harm from JU to the applicant and that state protection and reasonable internal relocation are available for his safe return to Bangladesh, but also rejected the applicant’s evidence as unreliable, and even on the facts of his own case that he was not entitled to non-refoulement protection to avoid his criminal responsibility in JU’s extortion case as it is clearly not the purpose of international surrogate protection agreement/law to help him escape from condign legal liability.  

8.On 20 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he set out four grounds for his intended challenge: 

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

(2) that the adjudicator acted procedurally unfair 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 the result of procedural error or unfairness; and

(4) that the Board failed to meet high standard of fairness owed to self-represented claimant.

9.These are all very broad and vague statements without any particulars or specifics from the applicant, but in the remaining part of his Form 86 and his supporting affirmation of the same date, it seems that the basis of these grounds consists essentially of his following complaints:

(1) that the hearing bundle with documents all in English was provided to him just six days before his appeal hearing before the Board and therefore with insufficient time for him to properly prepare for the hearing; and

(2) that the Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to Bangladesh.  

10.For the first complaint the applicant claims that he was given the hearing bundle on 13 September 2017 with only six days to prepare for his appeal hearing before the Board on 20 September 2017, while all the documents were in English for which he could not afford the assistance of any interpreter, and hence it was procedurally unfair to him in the appeal.

11.Even assuming that indeed he was only provided with the hearing bundle by the Director on 13 September 2017, he must be well familiar with most of the documents including his own non-refoulement claim forms, records of his screening process before the Immigration Department, as well as the Director’s decision, all of which he already had access to earlier when he had legal representation.

12.Furthermore, I note that both his Form 86 and his supporting affirmation are in English but which he had signed and affirmed to without requiring any interpretation, and that when he attended the oral hearing before the Board and with the assistance of interpreter, he never raised any of the above complaints to the adjudicator.  In the premises I do not see anything amiss arising from any late provision of the hearing bundle to him in the process of his appeal before the Board, nor do I see any merit in this complaint of his. 

13.As for his complaint of the Board using unreliable or outdated COI in its assessment of his safe return to Bangladesh, again the applicant has failed to provide any particulars or specifics for such complaint which is clearly his burden to do so, and upon examining those COI referred to by both the Director and the Board, I do not find any basis or merit in this complaint of the applicant either.

14.In the premises and having considered both the decisions of 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.

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 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