Ahammed Mamun v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 986/2017

[2018] HKCFI 1594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 986 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 34-year-old national of Bangladesh who entered Hong Kong illegally on 26 August 2015 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 23 September 2015 on the basis that if he returned to Bangladesh he would be harmed or killed by certain 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 Chandrapur, Purulia, Gurudaspur, Natore of Bangladesh where his mother, his wife and a daughter still live.  After leaving school he worked as his family’s garment business and in 2008 joined the Bangladesh Nationalist Party (“BNP”) while working in Gazipur.

3.Initially he was too busy with his family business that he did not have time to participate in any activities of BNP, but when his parents took over the business he started to take part in the party’s meetings and rallies.

4.One day in January 2015 when he attended a large demonstration organized by BNP, he and other members of BNP were attacked by the AL supporters during which he was injured in his left leg and was taken to the hospital for treatment.  Afterwards the AL people made false charges to the police against BNP members including the applicant, and one morning when he was out some police came to his home looking for him, and after they left his father called him and told him not to come home and so the applicant went to hide in his friend’s place in Gazipur.

5.However, on the next day when the applicant was told by his parents that some AL members came to their home looking for him, and when his parents refused to disclose where he was, they were beaten by those AL people who threatened to kill the applicant before they left.  The applicant therefore decided that it was no longer safe to remain in Bangladesh and so on 17 August 2015 he left for China, and from there he subsequently sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 19 January 2016 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 6 May 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 on the facts of the applicant’s case that he being just an ordinary member of BNP without any particular post that it is doubtful that the AL people would specifically target him and therefore assessed the risk of him being harmed upon his return to Bangladesh as low, 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 168 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 adult with work experience to move to other areas away from his home district such as Dhaka or Gazipur where he had lived and worked for five years without any incidents.

8.By a Notice of Further Decision dated 13 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 appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 11 September 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.

10.In its decision the Board found the applicant’s allegation of various threats and assaults by the AL people as hearsay unsupported by independent corroborative evidence, that in any event state protection would be available to him if resorted to, and that as the problems encountered by him from the AL people is localized and a matter of regional politics that there is no reason why he cannot relocate to Dhaka or Gazipur where he had lived for five years without incidents. 

11.On 30 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 it he put forward the following grounds for his intended challenge:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decision to refuse his appeal were unreasonable or irrational in the public law sense or is the result of procedural error or unfairness; and

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant.

12.These are all very broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how his appeal was dealt with in a procedurally unfair manner, or in what way was the Board’s decision unreasonable or irrational in the public law sense, or how the Board failed to meet the care and duty in dealing with his appeal.  There is simply no elaboration whatsoever by the applicant of any of these complaints. 

13.The only other complaint which he has elaborated was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board and with the majority of the documents in English thereby given him insufficient time to prepare for his appeal or to find an interpreter to assist him.

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 as they were already made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he was able to present his appeal without any difficulty before the Board with the assistance of an interpreter during which he never raised any issue about the hearing bundle or requested for further time for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

15.Given the fact that it was found by both the Director and the Board in their decisions that the risk of harms from the AL people is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording him with non-refoulement protection in Hong Kong, and no reason for this court to interfere with their decisions: see TK v Jenkins [2013] 1 HKC 526.     

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 24^th 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