Sumon Miah v. Torture Claims Appeal Board

HCAL 915/2017

[2018] HKCFI 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 915 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 38-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 15 April 2009, and after he was referred to the Immigration Department for investigation, he lodged his torture claim with the Department on 10 February 2010 on the basis that if he returned to Bangladesh he would be harmed or killed by members and supporters of his rival political party Awami League (“AL”) for allegedly being involved in the murder of one of their members, and that he would not be treated fairly by the authority in the legal process of his role in that murder.  He has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in Brahmanbaria, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving secondary school he worked in construction sites and in 2000 became a member of BNP.  In 2003 he was nominated to become the president of Jatiyatabadi Chhatra Dal (“JCD”), the student wing of BNP, and organized many campaigns and activities to recruit new members and supporters for BNP.

3.One day in 2004 the applicant together with other members of BNP interrupted a meeting of the AL members and a fight broke out between members of the two parties.  Later on the same evening when the applicant was alone on his way home, he was ambushed by JM, the secretary of Bangladesh Chhatra League (“BCL”) which was the student wing of AL, together with other men who assaulted him with fists and sticks.  Before they left JM put a knife to the applicant’s neck and threatened to cut his throat if he dared to interfere with their activities again and took 12,000 Taka from him.

4.As a result the applicant sustained bruises all over his body with a fractured arm and was hospitalized.  Although the assault was later reported to the police, it was not clear of the result of their investigation but the applicant kept a low profile after his discharge from hospital.

5.After a while when things appeared to have returned to normal, the applicant resumed his work for BNP.  However, one day in 2006 when he with other BNP members ran into some members of AL in the village, another fight broke out between them during which some of them were seriously injured including the applicant who had to be admitted to hospital for treatments.  Upon discharge from hospital the applicant heard that one of the AL members had died from his injuries and that the police were looking for him as the AL members had accused him of being involved in the death of their member.

6.As AL was then in power and as the applicant believed that he would not be treated fairly by the police, he therefore fled to Dhaka and remained there for the next two years during which he was told that he was wanted by the police for the murder of that AL member and that the army had been enlisted to search for him, he therefore fled from Dhaka to Chittagong, and when he was spotted there, he returned to Dhaka and then fled to India on two occasions before returning to hide in Dhaka again until 2009 when he heard that he had been convicted of that murder by the court in his absence, he was advised by his friend to leave Bangladesh for his own safety, and therefore departed on 15 February 2009 when he flew to Mainland China, and from Shenzhen he sneaked into Hong Kong where he was subsequently arrested and lodged his torture claim with the Immigration Department. 

7.By a Notice of Decision dated 9 October 2015 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”).

8.In his decision the Director expressed doubt as to the applicant’s claim that he was wanted by the police for murder as he was able to depart Bangladesh freely without difficulty not just for China in 2009 but also before when he travelled back and forth between India and Bangladesh twice, in which case there is therefore no reason for the AL people to pursue him with threats or harm but otherwise the risk of him being arrested by the police upon his return to Bangladesh is only a direct legal consequence of his involvement in a murder case for which he should not be entitled to non-refoulement protection, and that even assuming there are real risk of harm from the AL people and in the absence of any reliable evidence of any involvement of the state or the police in those threats, objective Country of Origin Information (“COI”) show that state protection and internal relocation alternatives would be available to the applicant upon his return to Bangladesh which has a large population of 169 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for him to live in areas away from his home district such as Dhaka free from any threats of the AL people.  

9.By a Notice of Further Decision dated 8 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

10.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 19 October 2015 and for which he attended an oral hearing on 26 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board upon hearing the applicant in evidence and upon examining the various documents produced by him found his evidence contradictory, vague and ultimately unreliable while the authenticity of his documents also questionable and were therefore unreliable, and was therefore not persuaded that there is a real chance of him being targeted in the future by the AL party members or supporters, and concluded that his application for non-refoulement protection fails on all applicable ground.

12.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 set out the following four grounds for his intended challenge:

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

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

13.These all appear to me just broad and vague statements unsupported by any particulars or specifics, but the applicant has in both his Form 86 and supporting affirmation of the same date referred to various complaints which can be seen as the basis for these grounds and summarized as follows:

(1) that he was given the hearing bundle for his appeal to the Board only six days before the hearing and therefore insufficient time for him to prepare and to find an interpreter to assist him in his appeal; and

(2) that the Board has significantly relied on source of news not officially recognized or were merely hearsay or outdated resulting in its groundless speculation of his safe return to Bangladesh.

14.For his first complaint the applicant claims that he was only given the hearing bundle by the Director on 19 April 2017 while his oral hearing was scheduled before the Board on 26 April 2017, and as all the documents were in English he was unable to find an interpreter to assist him in his appeal, and hence it was procedurally unfair in the circumstances for the Board to reject his claim and dismiss his appeal.

15.Assuming that he indeed only received the hearing bundle six days before the hearing of his appeal, these are documents that he would be familiar with such as his non-refoulement claim forms, records of his screening process with the Immigration Department and the Director’s decisions which were either prepared by him or on his behalf or when he still had the benefit of legal representation from Duty Lawyer Service.

16.Furthermore, it is clear that he was assisted by an interpreter at his oral hearing before the Board during which he was able to make representation without any difficulty but never raised any issue or complaint to the adjudicator about the lack of time or language assistance.  In the premises I do not see anything amiss arising from the late provision if any of the hearing bundle to him in the process of his appeal to the Board.

17.As for his complaint about the Board using unreliable, hearsay or outdated COI in the assessment of his safe return to Bangladesh, again the applicant has failed to provide any particulars or specifics to substantiate such assertion, nevertheless upon examining those COI listed and referred to in their decisions of both the Director and the Board, I am unable to find anything amiss in their reliance of such information, and given that his claim was rejected on credibility as to his account of events that led to his alleged fear upon return to Bangladesh, I do not see any basis or merit in this complaint of the applicant either.

18.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.

19.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