Ilias Mohammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 995/2017

[2018] HKCFI 1927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 995 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 55-year-old national of Bangladesh who last entered Hong Kong illegally on 13 November 2012 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 the basis that if he returned to Bangladesh he would be harmed or killed by members of Purbo Bangla Communist Party ML-Jonojuddho/Janajuddha (“PBCP-J”) and by the police for being involved in that party which has been banned as illegal in Bangladesh.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Khulna, Bangladesh.  After leaving school he engaged in trading business in Boyra, Khulna and joined PBCP-J involving mainly in their propaganda activities.  The applicant also got married and formed a family, and in 1998 he started to work as a manager of a motor bus owners association in Khulna.

3.In about late 2004 the leader of PBCP-J was killed by the police in a raid, and afterwards different fractions of the party were formed and internal strife started to develop within the party.  Fearing that he might become involved in such internal strife or of being pursued by the police, the applicant started to stay away from the party or their activities, and when other members became suspicious of him and started to threaten him, the applicant felt it was no longer safe for him to be in Bangladesh and therefore fled on 4 July 2005 for China, and from there he arrived in Hong Kong on 9 July 2005 when he lodged a refugee application with the United Nations High Commissioner for Refugees which was subsequently rejected and he was repatriated to Bangladesh in 2012.

4.Upon returning to Bangladesh the applicant discovered that he had been divorced by his wife, and he therefore stayed at various places of his friends.  One day in August 2012 when he was visiting his mother in Ilias Villa, Hafiz Molla Sarani, Chhoto Boyra, Sonadanga Khulna, he was ambushed by the Rapid Action Battalion (“RAB”) of the police and was knocked unconscious. After he regained consciousness in the hospital, he learnt that his mother was killed in the raid, and that he was taken to the RAB headquarter where he was interrogated for days about his involvement in PBCP-J, and was subsequently charged for being involved in a banned organization and was remanded in detention by the Khulna Court for more than 20 days before he was finally bailed out by his lawyer.

5.Upon his release on bail the applicant feared that other members of PBCP-J would still be going after him, and as he did not believe that he would get a fair trial in Bangladesh, he therefore applied for a new passport and left Bangladesh in November 2012 for China again, and from there he sneaked into Hong Kong and lodged his non-refoulement claim with the Immigration Department, and for which he completed a Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 2 September 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 the absence or low intensity and frequency of past ill-treatment from PBCP-J indicative of low risk of the feared harm of the applicant materializing upon his return to Bangladesh, that he was not a target of the police or the government as he was never arrested upon his repatriation to Bangladesh in 2012 and that he was able to obtain a new passport and to leave Bangladesh again without any problem and hence 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 169 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 adult with work experience to move to other areas away from his home district such as Chittagong.

8.By a Notice of Further Decision dated 8 June 2017 the Director again rejected the applicant’s claim after receiving and considering additional facts submitted by the applicant 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 an oral hearing on 28 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 17 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board formed the view that the applicant is not a witness of truth and that he has fabricated claims in relation to his involvement in politics, that it did not accept that he has ever had any association with the PBCP-J or that he was ever a member of or had ever been involved with the party, or that PBCP-J would have any interest in him, or that he has ever had to hide from the police or the authorities or that his mother died in the manner claimed by him, and concluded that he would not be at risk of any harm from members of PBCP-J or the authorities upon his return to Bangladesh.    

11.On 1 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 it he put forward the following grounds for his intended challenge:

(1)  that the Director and the Board had unlawfully fettered their discretions by rejecting his claim and dismissing his appeal on the ground 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 decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

(4)  that the Director and 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 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 Director or the adjudicator had erred in their decision, or in what way did the adjudicator act in a procedural unfair manner, or what procedural errors had the Board committed in its decision, or in what way did the Director or the Board fail to meet the care and duty owed to the applicant.  None of these assertions were explained or elaborated with any particulars or specifics by the applicant at all.

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 other documents all of which were in English and thereby giving him 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 from the Director that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier been already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue with the hearing bundle or requested the adjudicator 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.

15.The fact that his claim was rejected by the Board on the facts and evidence before it essentially on his credibility for the detailed reasons and analysis set out in its decision, and 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 adjudicator’s clear findings as to the core of the applicant’s claim that he was not a member of PBCP-J or that he has ever been involved with that party or a target of the police or state of Bangladesh, I am unable to find any basis or reason to interfere with the Board’s decision on any of the 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 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