Md Monju Sheikh v. Wesley Wong, Esq., Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 825/2017

[2018] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 825 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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 26-year-old national of Bangladesh who entered Hong Kong illegally on 27 January 2013 and was arrested by the police on 29 January 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 3 March 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by a man FS and/or his family for injuring him in a fight over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Jogania, Munshiganj, Bangladesh where his family owned seven pieces of land in the village which have since his parents’ death passed to him and his four brothers in equal shares.  After leaving school he worked in his grandfather’s grocery store.

3.One day in the summer of 2011 while he was working in the grocery store, he heard loud noises near his house, and when he went there he saw both his eldest brother AB and his grandfather lying injured on the ground with a gang of 15 to 20 men attacking them.  The applicant therefore tried to fight off the men with a chopper during which he was also injured in his face and left wrist but he managed to fight off those men after chopping off the arm of their leader FS who then fled from the scene.

4.After the incident the applicant was taken to a hospital in Dhaka for treatment when he was told by AB that they were attacked by FS who was after their land.  However, when AB reported the attack to the police, he was detained when he refused to disclose the applicant’s whereabouts as the police was looking for the applicant over the injury caused to FS who happened to be an influential member of the ruling party Awami League (“AL”) and the son of the Minister of Food in Bangladesh, and when the applicant heard that FS and his family were looking for him for revenge, he took shelter in his sister’s place in Gazipur for more than one year without any incidents.

5.After AB was released by the police he moved with his grandfather to Kaliganj to avoid FS and his family, but when the applicant heard that FS and his family had destroyed his grandfather’s grocery store after they were unable to find the applicant there, he decided that it was no longer safe for him to remain in Bangladesh and so he left on 20 October 2012 for China, and from there he sneaked into Hong Kong on 27 January 2013 and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) on 25 September 2015 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 13 November 2015 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 substantial grounds for believing that the applicant would be in danger of being harmed or killed by FS or his family upon his return to Bangladesh as nothing happened to him for more than a year after the incident up to his departure for Hong Kong and that his behavior was inconsistent with a person genuinely in fear, that in the absence of any evidence of any state or police involvement in FS’s threats 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 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to safely move to Dhaka or Gazipur where he used to stay with her sister without any incidents.

8.By a Notice of Further Decision dated 20 December 2016 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 attended two oral hearings on 3 April 2017 and 13 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found his dispute with FS purely a private matter that in the absence of any reliable evidence of any state involvement that state protection would be available to him, and that it is a reasonable option for him to relocate to other places in Bangladesh such as Dhaka or Gazipur where he used to stay with his sister without any incidents. 

11.On 31 October 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 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 and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

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

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

(4)     irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5)     irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

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

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

(8)     procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure; and

(9)     procedural impropriety/unfairness in the adjudicator failing to arrange an oral hearing for the applicant in his appeal.  

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 fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient, and that it is plain wrong for him to complain of not being given any oral hearing for his appeal before the Board when in fact he actually attended two hearings as noted above.  I find none of these grounds supported by any particulars or specifics or facts from the applicant.

13.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

14.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant which were available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he was assisted by an interpreter at the two oral hearings before the Board during which he never raised any issue with the bundle or requested for further time to enable him to properly prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

15.On the evidence available, the adjudicator was entitled to conclude that the applicant had failed to show that it was unsafe and therefore unreasonable for him to relocate to any of the alternative places suggested by the Director or the Board and that therefore there was no justification to afford him with non-refoulement protection in Hong Kong, there is simply no basis for interfering with the Board’s decision on any of those grounds of the applicant.     

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 20^th day of July 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