Mamun Or Rashid v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office

HCAL 1014/2017

[2018] HKCFI 1604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1014 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 37-year-old national of Bangladesh who last arrived in Hong Kong on 9 September 2005 with permission to remain as a visitor up to 23 September 2005 but he did not depart and instead overstayed until he was arrested by the police on 24 October 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 that if he returned to Bangladesh he would be harmed or killed by his creditors for money owed to them.  On 5 January 2011 his torture claim was rejected by the Director of Immigration (“the Director”) while his subsequent appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 8 April 2011.  He then lodged a non-refoulement claim upon the commencement of the Unified Screening Mechanism by completing a Non-refoulement Claim Form on 10 April 2017 with legal representation from the Duty Lawyer Service.

2.  The applicant was born and raised in Village East Shoshaliya, District Noakhali, Bangladesh.  After leaving school he operated a grocery and money exchange business with a partner with capital obtained from his father and borrowings from a bank and two money-lenders with political connections with the ruling party in Bangladesh.

3.  One day in 2003 the applicant discovered that his partner had disappeared with the business capital and cash that he found himself unable to make repayments to his creditors, and when they made a complaint to the police, the applicant decided to close down his business and went into hiding in his aunt’s place in Laxmipur where he stayed for several months before moving to Chittagong and Sylhet between 2003 and 2004 and then to Dhaka in 2005 where he was attacked one day by several men whom he believed to be sent by his creditors.

4.  After he was discharged from hospital for the injuries received from the attack, he decided that it was no longer safe for him to remain in Bangladesh, he therefore left for China in July 2005 and from there he made several trips to Hong Kong with the last one in September 2005 when he overstayed and subsequently lodged a torture claim with the Immigration Department, and when that failed he then lodged a non-refoulement claim by completing a Supplementary Claim Form on 5 April 2017 with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 29 May 2017 the Director rejected the applicant’s non-refoulement claim on all the remaining grounds including 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 doubted the applicant’s account of events in Bangladesh and found no substantial grounds for believing that there would be any real or substantial risk of him being harmed or killed upon his return to Bangladesh, that in any event it was a private monetary dispute that he should face up to his responsibility in court and that if necessary state protection would be available to him if resorted to, and 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 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Chittagong where he had stayed before without any incidents.

7.  On 5 June 2017 the applicant lodged an appeal to the Board against that decision, and for which he attended an oral hearing on 8 November 2017 during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 1 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found the applicant not a credible witness for reasons of his vague, evasive and inconsistent evidence as well as the implausibilities in his claims and his non-persuasive explanations, and rejected his claim that he had operated a money-exchange business with a partner or that he had borrowed money from his creditors or that he was being looked for by any creditor or by the police, or that he departed Bangladesh in fear of any harm as claimed, and concluded his non-refoulement claim has failed on all applicable grounds.

9.  On 6 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 grounds for his intended challenge:

(1)  procedural impropriety for failing to properly apply the requirement that states must effect reforms and avenues of redress in the consideration of the applicant’s claim;

(2)  procedural impropriety for failing to conduct sufficient independent inquiries into the relevant COI or to provide any justification for preferring certain COI or for cherry picking COI materials or in considering supporting documents submitted by the applicant in arriving in the consideration of his claim;

(3)  error/misdirection in law in failing to consider the psychological harm on the applicant due to the attacks on him in his claim; and

(4)  irrationality/illegality in failing to give sufficient reasons for arriving at the conclusion that the applicant would not be at risk of harm upon his return to Bangladesh.  

10.  These are all very 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 Director or the Board had erred in their decision, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, whilst others just do not seem to make any sense or relevancy to his case in the absence of any explanation or elaboration from the applicant.

11.  Given the fact that the applicant’s claim was doubted by the Director and rejected outright by the Board on his credibility for the detailed reasons and analysis set out in their respective decisions, any attempts by the applicant to challenge their  decisions over their use or reliance of COI as to the situations in Bangladesh would in my view be futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers.  With the clear findings by the Board against the applicant as a credible witness and the implausibilities of his claim, I am unable to find any basis or merits in any of those grounds of the applicant.     

12.  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.

13.  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