Md Akram Uz-zaman v. Wesley Wong, Esq. and Another

HCAL 1000/2017

[2018] HKCFI 1551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1000 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 42-year-old national of Bangladesh who entered Hong Kong illegally on 11 August 2007 and was arrested by the police on 4 May 2008.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 10 May 2008 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Bangladesh Nationalist Party (“BNP”) and/or by supporters of Awami League (“AL”) for quitting their party, and/or prosecution by the police over certain false charges for murder and possession of firearms filed by the BNP people.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kushtia, Bangladesh in a family of keen supporters of the AL party in which his grandfather was once the chairman of its Jhaudia branch.  After leaving school with a degree of Bachelor of Arts the applicant worked in his parents’ shop and also became member of AL.

3.However, after his grandfather was killed in a terrorist attack which the applicant suspected was planned by rival BNP, and when his AL leaders refused to assist his family to go after the BNP people so as to bring justice to his grandfather’s death, the applicant withdrew his membership from AL to join its rival party Purba Banglar Communist Party (“PBCP”) in the hope of seeking revenge against BNP.

4.However, one night in 2000 he was abducted by some BNP men during which he was beaten and threatened that he would be killed next time if he tried to seek revenge against BNP, and was only released after his parents had paid a ransom.  Thereafter the applicant went hiding in various places in Kushtia for the next five years during which he was investigated by the police for various false charges lodged by BNP against him including possession of firearms and murder.  One night in 2004 when he was shot at by certain BNP members, he fled to Gazipur where he stayed without any further incidents, but when he was told by his family that the BNP people were still looking for him, he decided that he was no longer safe in Bangladesh and departed for China in August 2007 and from there he sneaked into Hong Kong and subsequently lodged his torture claim, and with the commencement of the United Screening Mechanism, he completed a Non-refoulement Claim Form (“NCF”) on 14 July 2014 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 4 June 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”).

6.In his decision the Director on the facts of the applicant’s case assessed the level of risk of harm from the BNP people or the AL people or the police as low, that it is doubtful that after all these years they would still have any adverse interest in him, that in the absence of any evidence that the state or government were ever involved in any of those 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 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from his home district such as Dhaka or Gazipur where he had stayed for more than two years without any incidents. 

7.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”).

8.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 16 June 2015, and for which he attended three oral hearings on 20 March 2017, 11 May 2017 and 30 October 2017 before the Board during which he gave evidence and answered 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.

9.In its decision the Board found even on the facts of the applicant’s case that he had no valid reasons to leave Bangladesh after living for more than two years undisturbed in Gazipur to justify non-refoulement protection, that any fear of the influence of BNP no longer exists as AL is now the ruling party, and that in any event reasonable internal relocation alternatives are available for the applicant’s safe return to Bangladesh in cities such as Dhaka or Gazipur. 

10.On 4 December 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 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 herself 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; and

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

11.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.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.The applicant did however elaborate a complaint of being provided with the hearing bundle just a few days before his appeal hearing before the Board with the majority of documents including the Director’s skeleton submission in English and thereby given insufficient time to prepare for his appeal or to find an interpreter to assist him.

13.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 were already made available to him earlier when he still had legal representation, and that he was assisted by an interpreter at all of his appeal hearings during which he never raised any issue about his hearing bundle.  In any event as the 2^nd hearing took place almost 2 months after the 1^st hearing while the 3^rd hearing a further 5 months thereafter, there could not possibly be any excuse for not having sufficient time to prepare even if the bundle was indeed given to him just a few days before the 1^st hearing.  Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his first oral hearing before the Board.

14.As for the remaining complaint of the applicant in his affirmation about the Board taking more than two years from the filing of his appeal in June 2015 to the time of its decision in November 2017 which he argues that many things could have changed including situations in Bangladesh as well as the relevant COI which were therefore not up to date when considering his claim, the fact is that the oral hearings as noted above all took place towards the tail end of that period with the last one less than a month before the decision, during which he had had ample opportunities to bring the Board up-to-date of any changes relevant to his claim or to raise any issue thereof, as it was certainly his duty to do so with the Board and/or the adjudicator but which he never did.  Having proceeded to carefully examine the list of COI referred to by both the Director and the Board in their decisions, I do not find any basis for this complaint of the applicant.

15.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.

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 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