Munshi Harunur Rashid v. Christian Patrick Carney, Esq

HCAL 1002/2017

[2018] HKCFI 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1002 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 30-year-old national of Bangladesh who illegally entered Hong Kong on 26 February 2014 and was arrested by the police on 2 March 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on 5 March 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of his rival political party.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Rajapur, District Brahmanbaria, Bangladesh to a family of supporters of the political party Bangladesh Nationalist Party (“BNP”). After leaving school he became involved in car rental business and joined BNP as a member in 2005 and also worked for the party by providing transportation service to its members for attending rallies and other political activities.

3.In 2009 as rival party Awami League (“AL”) came into power, its supporters started to harass those of BNP which led to various conflicts between them, and when the applicant was promoted to be the campaign secretary of BNP in 2011, he also became a target of the AL supporters who would demand with threats that he quit BNP to join AL, and when he refused they assault him by punching and kicking whenever they ran into him on the streets, and on other occasions they would even vandalize his home and his business, whilst the police were not willing to help unless he paid a bribe.

4.As a result the applicant moved to stay with his friend in Chittagong, returning home only to visit his family, but still whenever he ran into the AL supporters in his home village he would be assaulted, and on one occasion in 2012 while he was driving to Brahmanbaria City he had an accident of which he suspected was intentionally caused by the AL supporters.

5.In 2013 while he was staying in Chittagong, he was told by his mother that some AL men had come looking for him, and when they could not find him they threatened his mother.  He therefore decided to leave Bangladesh for his own safety and departed in March 2013 for China where he stayed for about one year before sneaking into Hong Kong in February 2014 where he subsequently lodged his non-refoulement claim, for which he eventually completed his Non-refoulement Claim Form (“NCF”) on 13 August 2015 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 27 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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”).

7.In his decision the Director found the applicant’s behavior since his departure from Bangladesh not consistent with a person with a real fear of risk of harm from the AL people, that there is no evidence of the police being involved in the threats from the AL supporters and hence state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across more than 148,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to areas away from his home district such as Dhaka or Chittagong where he had lived for almost two years without incidents before he departed Bangladesh.

8.By a Notice of Further Decision dated 9 August 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”).

9.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 11 July 2016, and for which he attended an oral hearing on 4 September 2017 before the Board during which he just confirmed the evidence that he had given to the Immigration Department and declined to give any further evidence or to answer any questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the applicant’s evidence in a number of key aspects of his claim confusing, vague, inconsistent and ultimately unconvincing, such as his claimed roles and activities within BNP, of which he declined to discuss with the adjudicator or answer his questions or engage in any discussion of his claim which caused the Board to have serious concerns about his reliability as a witness and or the credibility of his claim, as recorded by the adjudicator as follows in the decision:

“ 42. However, what caused the Board to have serious concerns about his reliability as a witness and the credibility of his claims, was the manner and nature of his responses and his conduct at the hearing, including his unwillingness to engage in a discussion of his claims or in anyway defend his claims. Indeed, soon after the Board began to question him about the details of his background and claims, the Appellant said that he could not remember or recall anything about his claims or what had happened in Bangladesh, which he repeated in response to the majority of question he was asked, but he has not provided any medical evidence to support his claim to be unable to remember ‘anything’ about the past in Bangladesh or to indicate that he has an impaired memory or ability to recollect past events.

43. Moreover, despite the Board explaining to him that it had concerns about a number of aspects of his claims and evidence, and that it needed to test his evidence and give him the opportunity to respond to adverse information, he said that he did not want to answer questions or participate in the hearing or return for another hearing, and he repeatedly requested the Board to refer to his past evidence, despite not being able to remember what he had said before.  In the circumstances, the Board was unable to discuss his claims with him in more detail and test their veracity, and it was unable to seek further information in relation to a number of matters of concern, or give him the opportunity to explain the particular details of his claimed circumstances.” 

11.The Board then went on to give various examples in paragraphs 44 – 53 of its concerns about the applicant’s claims and the documentary evidence produced earlier to the Director of which the Board found necessary to clarify with him but not possible to do so given his refusal to participate in any discussion about them, and found in the circumstances that the applicant was not a reliable witness and that it had no confidence in accepting, and did not accept, that his evidence about what occurred to him in Bangladesh was based on his personal or actual experiences and considered that it was fabricated to create a claim to be owed protection.

12.The Board therefore concluded on the evidence before it that it did not accept that the applicant was a formal member or supporter of BNP or that he was ever involved in any activities of a political nature in Bangladesh such as attending meetings or rallies at any time in Bangladesh, or that he had ever held any position in BNP, and therefore he could not ever be a person of adverse interest to the AL members or supporters, or that he had ever been attacked or assaulted or subjected to any adverse treatment by the supporters or members of AL in Bangladesh.

13.On 4 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward set the following grounds for his intended challenge:

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

(2) irrationality in the adjudicator’s failure to place proper weight in the relevant COI and being selective in his reliance of COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of facts of a consistent pattern of gross and flagrant violation of human rights in Bangladesh;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exist in Bangladesh;

(5) irrationality in the Board taking into account and putting weight in irrelevant or inaccurate consideration of his claim;

(6) procedural impropriety for failing to call for psychological or psychiatric evaluation or reports;

(7) procedural impropriety/unfairness for the adjudicator to apply the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness in that failures at first instance on the part of his assigned duty lawyer resulted in lack of or insufficient legal representation for the applicant.

14.These are all very broad and vague assertions of the applicant containing several pages of key words/phrases but without any particulars or specifics or elaboration, and it is not clear how they applied to his case or how the Board or the adjudicator had erred in the decision.

15.Given the fact that the applicant’s claim was rejected essentially on his credibility, and for the clear and obvious reasons as noted above, any attempts by him to criticize the Board in its use or reliance of COI in the assessment of the situations in Bangladesh would in my judgment be futile and pointless, while his complaint of the Board for not calling any psychological or psychiatric evaluation is as pointed out by the adjudicator unsupported by any medical reason or evidence, nor is there any basis for his challenge over the correct standard of proof used by the Board in assessing his credibility as the adjudicator did clearly and correctly apply the correct tests as explained in paragraphs 33 – 53 of the Board’s decision.

16.I should also note that in his supporting affirmation the applicant also complained of being given the hearing bundle of documents all in English only a few days before his appeal hearing before the Board, in which he should in fact be well familiar with most of the documents which comprised of his NCF, records of his screening interviews and the earlier decision of the Director all of which were already provided to him when he still had legal representation, and that in any event he never raised any issue about it at the hearing before the Board during which he in fact turned down the adjudicator’s offer to give him a further hearing.

17.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.

18.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 12^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