Chy Md Fayej Ahamad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 981/2017

[2018] HKCFI 1552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 981 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 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 15 April 2014 and was arrested by the police on 19 April 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 21 April 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by certain members 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 Village Sontush Pur, North Itakhola, Madhabpur, Habiganj, Bangladesh to a family of supporters of Bangladesh Nationalist Party (“BNP”) which the applicant joined as a member of its youth wing Jubo Dal in 2003.  After leaving school the applicant worked in trading construction materials and lived with his parents and siblings.

3.In about mid-2013 there was a big clash between members and supporters of BNP and AL at the village market during which the applicant’s uncle was killed by one of AL’s local leaders JA, and when the police wanted the applicant to give his witness statement and was threatened by the AL people that he should tell the police that he did not witness any involvement of JA or otherwise they would kill him, whilst his uncle’s family urged him to tell the truth to the police.  As he could no longer bear the pressure from all sides, he fled his village to stay at Dhaka.

4.Whilst there in Dhaka the applicant heard from his family that the AL people were still looking for him and when they could not find him at home, they beat up his father and vandalized his house.  The applicant therefore decided to leave Bangladesh for his own safety, which he did on 25 February 2014 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 June 2017 with legal representation from the Duty Lawyer Service.    

5.By a Notice of Decision dated 13 July 2017 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

6.In his decision the Director found on the facts of the applicant’s case no substantial grounds for believing that there would be any real risk of him being harmed or killed by the AL people or that he would be arrested by the police upon his return to Bangladesh given the fact that he was able to remain safely in Dhaka for almost a year without any incidents before coming to Hong Kong, that his dispute with the AL people was a localized matter without any state involvement that state protection would be available to him 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 156 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 safely to other areas away from his home village such as Chittagong or Dhaka where he had stayed before without any incidents.

7.On 27 July 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and attended an oral hearing on 19 October 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 decision of the Director.

8.In its decision the Board did not accept that the applicant was a credible or reliable witness, that he failed to adduce any credible evidence to show that JA and/or the police would want to kill or harm him in order to prevent him from giving evidence in court and rejected his claim that he was at risk of harm from JA and/or members or supporters of AL and/or the police, that most if not all the core assertions to his non-refoulement claim have been fabricated or is wholly unreliable, in particular his claimed profile as an active and prominent political supporter of BNP has been exaggerated to a significant degree, and that there is no credible evidence that there was any political element to his claim, and concluded that the applicant’s claim has failed on all applicable grounds.   

9.On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward several grounds for his intended challenge which can be summarized as follows:

(1)  failing to maintain high standard of fairness by providing the hearing bundle and skeleton argument of the Director with no translation to the applicant just four days before his appeal hearing so that there was insufficient time for him to prepare for his appeal; 

(2)  error of law by approaching his appeal by simply trying to see whether it could find fault with the Director’s decision and by not requiring the attendance of the Director at the appeal hearing; and

(3)  failing to apply more care in considering his claim given the fact that the applicant was not legally represented in the appeal.   

10.For his complaint in ground (1) of being given the hearing bundle only four days before his appeal hearing before the Board with the majority of the documents in English including the skeleton submission of the Director thereby giving him insufficient time to prepare for his appeal and to find an interpreter to assist him with the translation of the documents, even assuming that the bundle was indeed provided to him on 12 October 2017 which is seven days, and not four days as he alleged, before his scheduled appeal hearing on 19 October 2017, and I note he has not produced the letter from the Director which accompanied the bundle as proof, it is plain to me that most of the documents in the bundle such as his NCF, record of his screening interviews and the Director’s decision had in fact already been made available to him earlier when he still had legal representation, and hence with which he would have been well familiar prior to his appeal hearing during which he was assisted by an interpreter but he never raised any issue about the bundle nor requested for further time to prepare for his appeal.  In the circumstances I do not find anything amiss arising from the provision of the hearing bundle to the applicant.

11.As for his complaints under ground (2) over the approach of the Board to his appeal and the non-attendance of the Director at his appeal hearing before the Board, for the former the adjudicator did in paragraph 8 of her decision make it abundantly clear that the applicant’s appeal was to be dealt with as a rehearing de novo, that all questions of facts and law were at large and that the Board was to come to its own conclusion on all issues of credibility, facts and law as well as the relevant COI, and which is exactly what the Board did with the applicant’s appeal, and I do not see any basis or merits in the applicant’s criticism of the Board’s approach.

12.As for the latter part of the applicant’s complaint, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I do not see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this complaint of the applicant either.

13.The same can be said about ground (3) of the applicant, for which he has not provided any particulars or specifics or elaborations as to how or in what way that he as an unrepresented claimant may not have been fairly dealt with by the Board or the adjudicator in his appeal.  There is simply no basis for this complaint at all.

14.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.

15.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 3^rd day of August 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