Jewel Sheikh v. Torture Claims Appeal Board

HCAL 940/2017

[2018] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 940 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 32-year-old national of Bangladesh who entered Hong Kong illegally on 27 July 2013 and was arrested by the police on 28 July 2013.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 3 August 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Netera Village, Munshiganj District, Bangladesh.  After leaving school he assisted his parents running their farm, and in 2010 he joined the political party Bangladesh Jamaat-e-Islami (“BJI”) where his father had been a long time member.

3.In 2011 about several months after the applicant joined BJI, he was threatened by some supporters of rival political party AL.  Then one day he was attacked by the same group of AL supporters on the street who hit him with iron rods and machetes until he lost consciousness and was admitted to hospital for treatments of injuries to his head and his left foot, for which he received four stitches on his head while his foot was cleansed and treated with bandage. When he was discharged from hospital after two days, he reported the matter to the police but no follow-up action was taken by them.

4.In about late 2011 the applicant’s father disappeared without any trace and his family became worried that it may have something to do with the AL supporters as his father had been constantly critical of AL, and so they reported the matter to the police who promised to look into it but had not come up with any result.

5.Soon the applicant found himself being stalked by AL supporters who would follow him anywhere he went.  Fearing for his own safety that the AL people may be going after him as his father’s son, he decided to leave Bangladesh, and so on 17 December 2012 he departed for China where he stayed until 27 July 2013 when he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 14 April 2016 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 1 September 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 absence or low intensity and frequency of ill- treatment from the AL people in the past indicative of a small future risk of harm to the applicant upon his return to Bangladesh, that his fear that the AL people may harm him because he is his father’s son is speculative and unsupported by any reliable evidence, that after all these years it is doubtful that the AL people would still have any adverse interest in him, that in the absence of any evidence of any involvement of the state or police in the threats of the AL people 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 140,000 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 without fear of any threats from the AL people.

8.By a Notice of Further Decision dated 25 July 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 his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 12 September 2016, and attended an oral hearing on 8 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 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 on which his claim of fear of harm from the AL people is based amounts to hearsay, speculative and unreliable, that he was not an honest or truthful witness, and that there is no evidence that the state or the police were involved in the threats of the AL people and hence state protection would be available to the applicant upon his return to Bangladesh.

11.On 23 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following ground for his intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to make sufficient research and inquiry into COI and failure to have regard to relevant and up-to-date COI research in the consideration of his claim;

(2)  irrationality in the adjudicator’s failure to take into account of relevant COI and for taking account or cherry-picking irrelevant COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to make finding of facts as to whether gross and mass violation of human rights exist in Bangladesh;

(4)  irrationality in the adjudicator’s failure to analyze or assess whether state protection exists in Bangladesh and in misdirecting himself on the law for erroneously stating the extended meaning of state protection;

(5)  irrationality in the Board taking into account and putting weight in irrelevant considerations of the applicant’s claim;

(6)  procedural impropriety for failing to call for psychological or psychiatric evaluations and reports on the applicant;

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

(8)  procedural impropriety/unfairness in insufficient representation from assigned duty lawyer for the applicant and hence not affording him a fair procedure.    

12.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator apply the standard of proof incorrectly or misapply the irrelevant COI, or which COI were irrelevant or outdated, or why it was relevant to call for psychological or psychiatric evaluations or reports on him, or how insufficient was the representation from his assigned duty lawyer, just to name a few of his bare assertions not supported by any particulars or specifics or elaborations.

13.The only discernible complaint with any substance that may be made of these assertions of the applicant is over the alleged late provision of the hearing bundle to him only a few days before his appeal hearing to the Board, but even if this is true and I have not seen any proof such as the date of the letter from the Director which accompanied the hearing bundle to show that it was indeed given to him only a few days before the appeal hearing, it is plain that the applicant should already be well familiar with most of the documents which had long been made available to him when he was still having legal representation, such as his own NCF which were completed on his instructions with legal assistance, records of his screening interviews and the Director’s decisions, and that at his oral hearing before the Board he never raised any issue over the late provision of the bundle nor did he request for more time to prepare for his appeal, as he was recorded in the Board’s decision to have “confirmed that he had received all the documents enclosed in the Bundle and he had the opportunity to peruse them”.  In the premises I do not find any merit in this complaint of the applicant.

14.I should also note that after filing his Form 86, the applicant on 29 January 2018 submitted the following documents as evidence of his injury in Bangladesh allegedly received from his “enemies” as well as the missing of his father and other BJI members.  Leaving aside the obvious questions over their authenticity and why they were not submitted during his process before either the Director or the Board, I find that the medical report from Munshiganj District Hospital actually contradict the applicant’s case when it stated that he was admitted into the hospital on 8 December 2011 due to a ‘road accident’ with injuries to his ‘legs, arms and shoulder’ and was discharged on 12 December 2011, whereas in both his NCF and his evidence before the Director and the Board he claimed that he was attacked by the AL people with iron rods and machetes resulting in injuries to his head and his left foot and that he was discharged from the hospital after two days, which in my view actually goes to support the Board’s findings of his evidence being unreliable and of him not being an honest or truthful witness.

15.As for the documents allegedly from BJI of its missing members over the years including his father and his friend, even if one were to accept them at their face value would not in my judgment assist the applicant in advancing his case any further than as found by both the Director and the Board that his suspicion that the disappearance of his father had anything to do with the AL people as no more than mere hearsay and speculation.

16.In the premises and having proceeded to consider 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 I accordingly refuse his leave application.

Dated the 22^nd 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