Islam Mohammed Serazul v. Torture Claims Appeal Board

HCAL 525/2017

[2018] HKCFI 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 525 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;         or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 41-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 17 August 2014, and after he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of the local Awami League Party (“AL”) for refusing to pay them extortion money.  He has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in Char Kisnojoy, Ahammadpur Sonagazi Feni, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving school he ran his own grocery store in his home town and became an ordinary member of BNP but without any post or office other than voting for the party during local election.

3.One morning in June 2014 he found his store being broken in with some goods stolen, and he suspected that it was carried out by some members of AL whom he heard had been extorting money from his neighbours, but he did not report the matter to the police to avoid trouble from the AL members.

4.However, starting from July 2014 the applicant began to receive threatening phone calls from these AL members asking for money, of which again he did not report to the police, and then on 11 August 2014 when the callers threatened to kill him if he still refused to pay them any money within one week, the applicant decided to leave Bangladesh for his own safety, and so he closed down his store and left for Dhaka, and from there he flew to Mainland China on 15 August 2014 and subsequently sneaked into Hong Kong where he lodged his non-refoulement claim.

5.By a Notice of Decision dated 8 June 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”). 

6.In his decision the Director found that even on the facts of the applicant’s own case the low intensity and frequency of past ill-treatment from the AL people of only verbal threats without any physical contact as indicative of a small future risk of harm upon his return to Bangladesh, that in the absence of evidence of any involvement of the government or the police in these threats that state protection would be available to the applicant if resorted to, that objective Country of Origin Information (“COI”) show that structured police forces are in place in Bangladesh with reforms ongoing to curb corruption and that there are alternative avenues for the public to seek justice within the authorities, and that internal relocation alternatives are reasonable and available in Bangladesh with such a large population of 168 million people spread over a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the applicant to return to areas other than his home district such as Chittagong free of any threats from these AL people.

7.By a Notice of Further Decision dated 17 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him 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”). 

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 20 June 2016 and for which he attended an oral hearing on 14 June 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board agreed with the Director’s assessments based on the applicant’s own case and on reliable and objective COI that state protection and internal relocation would be available upon his return to Bangladesh, but also upon hearing him in evidence concluded that nothing that he said or presented in evidence can be given any credence whatsoever, and that he is not a witness of truth as he has merely presented a learned account rather than one which describes events that he has genuinely experienced, as the adjudicator set out in details of his analysis and rationale in paragraphs 25 – 42 of the Board’s decision.

10.On 17 August 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 in support of his intended challenge: 

(1) the Board had unlawfully fettered his discretion in refusing his appeal on the ground that he did not satisfy the requirement;

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

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

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

11.All these are just bare and vague assertions without any substance or specifics provided by the applicant, a duty clearly required of him as held by Lam VP in Re Zunariyah [2018] HKCA 14 at paragraph 22:

“ … Thus, even though the court should examine if the procedure adopted by the primary decision maker conforms with the high standard of fairness, the court should not intervene if the materials produced by an applicant do not reveal any ground to impinge the legality, rationality or fairness of the process below. An applicant must produce something to satisfy such threshold before leave to apply for judicial review can be granted.”

12.That ‘something’ gathered from the rest of the applicant’s Form 86 and his supporting affirmation of the same date appears to me consist of essentially these:

(1) that he was given the hearing bundle of all documents in English only 6 days before his appeal hearing before the Board thereby giving him insufficient time to prepare and to find any interpreter to assist him in his appeal; and

(2) that the Board relied significantly on source of news not officially recognized or was simply hearsay or outdated which resulted in groundless speculations of his safe return to Bangladesh.   

13.For the first complaint, even assuming that indeed he only received the hearing bundle from the Director on 7 June 2017 he has asserted, he would have been familiar with most if not all of the enclosed documents including his non-refoulement claim forms prepared on his behalf, records of his screening process by the Immigration Department as well as the decisions of the Director all of which were already made available to him earlier before when he had legal representation under the Duty Lawyer Service.

14.I also note that he signed his Form 86 without any interpretation, and that at the oral hearing before the Board he was clearly assisted by an interpreter and during which he never raised any issue or complaint to the adjudicator arising from the hearing bundle, and that he was able to give his evidence and answer all the questions put to him by the adjudicator without any difficulty.  I am simply unable to see any merit or basis for his complaint arising from the hearing bundle.

15.As for his second complaint about the Board’s improper reliance on COI in assessing state protection and internal relocation alternatives available upon his return to Bangladesh, it is plain that he has just made a bare assertion without providing any specifics in substantiation, and upon careful consideration of 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.

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 accordingly I refuse his leave application.

Dated the 5^th day of June 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