Arif Molla v. Torture Claims Appeal Board

HCAL 949/2017

[2018] HKCFI 1322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 949 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 33-year-old national of Bangladesh who entered Hong Kong illegally on 19 July 2013 and was arrested by the police on 21 July 2013.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 24 July 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (“AL”) and possibly also prosecuted by the police for some false charges laid by those AL members against him.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Katiapara, District Munshiganj, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”) and of which his father was the president of the Srinagar Sub-District.  After leaving school he worked as a salesman in Islampur Dhaka, and in 2008 joined the Jubo Dal the youth wing of BNP mainly organizing and attending the party’s rallies.

3.As rival political parties the members and supporters of BNP and AL frequently had clashes between them, and one day in January 2009 while the applicant and his father and other members of BNP were on their way to a party meeting, they were ambushed and attacked by supporters of AL when both of them suffered injuries and had to be taken to hospital for treatments.  As threats from the AL supporters continued after the incident, the applicant and his family took shelter at a relative’s home in Dhaka where they stayed for several months without incidents before returning to their home.

4.However the threats escalated after the applicant’s father rejected the marriage proposal from one of the AL leaders KH for his daughter when KH in revenge made a false claim against the applicant, his father and his uncle to the police, and as a result his father was arrested but not the applicant, and after the applicant’s father was subsequent released on bail he then disappeared and was never heard of again, and during his disappearance the applicant was appointed the publicity secretary of the Jubo Dal, and when the BNP of the Srinagar Sub-District organized a public meeting in protest of the false charge against the applicant’s father, the applicant and other BNP supporters were attacked by the AL supporters.  As a result the applicant suffered injuries to his forearm and fled to Dhaka where he took shelter at his friend’s place.

5.The applicant remained in Dhaka for the next several years without any incidents, but in 2013 when he heard from his mother that KH and his men had come to her home looking for him with threats to beat him up when they found him, the applicant decided to leave Bangladesh for his own safety, and on 9 May 2013 he departed Bangladesh for China, and from there he sneaked into Hong Kong on 19 July 2013 where he subsequently lodged his non-refoulement claim for which he later completed his Non-refoulement Claim Form (“NCF”) on 12 September 2015 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 29 January 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 no real indication that the applicant was specifically targeted by the AL people as all the previous attacks were directed at BNP supporters in general and that KH’s grievance was mainly against the applicant’s father for rejecting the marriage proposal, it therefore assessed the level of risk of harm against the applicant by the AL people upon his return to Bangladesh as low, that in the absence of any evidence of any involvement of the state or the police that 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 a vast territory of 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 can safely live and work free of any threats from KH or the AL supporters.

8.By a Notice of Further decision dated 26 May 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, for which he filed his appeal on 11 February 2016, and attended an oral hearing on 10 October 2017 before the Board during which he declined to give any further evidence after confirming what he had stated in his NCF as true, but he did produce further documents in support of his claim for the Board’s consideration.  On 17 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board considered those additional documents produced by the applicant at his appeal hearing but for the detailed reasons stated in paragraphs 52 – 92 of its decision was unable to give them any credence, and also found flaws in the applicant’s evidence that he is not a witness of credit, that as for the allegation of false charges against him the Board found that if indeed they were genuinely brought, it would be impossible for the applicant not to have been arrested all these years when he was in Dhaka or for him to be able to leave Bangladesh in 2013 for Hong Kong, and that if there is still a risk of harm from KH and his AL people, that it would not be unreasonable or too harsh for the applicant as an able-bodied adult to escape that risk by relocation within Bangladesh away from his home district.

11.On 24 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board is in breach of procedural fairness in refusing his appeal including unlawfully fettering its discretion, acting in a procedurally unfair manner, failing to meet the greater care and duty owed to a self-represented claimant, and that its decisions were unreasonable or irrational in the public law sense; and

(2)  that the Board significantly relied on the source of news not officially recognized or were hearsay or outdated. 

12.In his supporting affirmation of the same date the applicant also complains about being given the hearing bundle of documents all in English by the Director only six days before his appeal hearing which was insufficient time to prepare for his appeal given his limited skills in English and as he could not afford any interpreter.

13.The grounds in (1) and (2) are just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board had erred in its decision, or which COI that the Board had relied on were not officially recognized or were hearsay or outdated.  Upon examining those COI listed and referred to by both the Director and the Board in their decisions, I do not find any merits or justification in any of these complaints of the applicant.

14.As for his complaint about being provided with the hearing bundle with all documents in English but insufficient time to prepare for his appeal, even if this is true that he only received it only six days before the hearing of which I would not regard as serious inadequate as far as time is concerned, the fact is that the applicant would have been familiar with most of the documents in that bundle which would include his own NCF and records of his screening interviews as well as the Director’s decisions, all of which had earlier already been made available to him when he still had legal representation, while he was also assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with the bundle or asked for more time to prepare for his case.  In fact as noted above he chose to decline to give any evidence at the hearing.  I do not find any merits in this complaint either.

15.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.

16.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 15^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