Islam Mohammad Amirul v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 833/2017

[2018] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 833 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 dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions,

(5)   Liberty to apply.

Observations for the Applicant:

1.The applicant is a 31-year-old national of Bangladesh who entered Hong Kong illegally on 30 June 2013 and was arrested by the police on 10 July 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 31 July 2013 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political parties Purbo Banglar Communist Party-Jonojuddho (“PBCP-J”) and the 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 Tiurbila, District Chuadanga, Bangladesh. After leaving school he joined his father to become a member of the Bangladesh Nationalist Party (“BNP”) and worked as a farmer in his father’s farmland and also traded in exporting/importing jute before becoming a construction worker in Dhaka in 2012.

3.One day in April 2003 his father was found murdered in his farmland and several members of PBCP-J were arrested by the police and subsequently charged and convicted of the murder and sentenced to lengthy imprisonment.  The applicant did not know why they murdered his father but suspected that the motive was political.

4.For the next nine years nothing eventful happened to the applicant until one day in January 2012 when he received a telephone call from a stranger extorting money from him, and when he refused the man threatened to kill him.  For the next several days he continued to receive such calls from strangers extorting money from him.  The applicant did not know who these men were but suspected that they were people of PBCP-J who were notorious for extorting money from villagers.

5.Several days later while he was on his way home from work, the applicant was abducted by some men who then locked him in a room without saying anything.  The applicant suspected that they were the same people who had tried to extort money from him on the phone and should therefore be members of PBCP-J or AL which were known to have hired PBCP-J to do their dirty jobs.  Eventually whilst the men were away the applicant was able to make his escape and fled to Dhaka for almost a year without any incidents, but as he still feared for his life he decided to leave Bangladesh and departed on 6 December 2012 for China, and from there he sneaked into Hong Kong where he subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 13 July 2015 with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 26 August 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”).

7.In his decision the Director found no evidence that any of the asserted events that occurred to the applicant in Bangladesh were related to either PBCP-J or AL, that it was all his own speculations that they were involved, that in the absence of any evidence that any involvement of the state or police in those threats that state and police 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 safely to other areas away from his home district such as Dhaka where he had stayed before without any incidents.     

8.By a Notice of Further Decision dated 3 November 2016 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, for which he filed his appeal on 2 September 2015, and for which he attended an oral hearing on 11 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no evidence that PBCP-J or AL as political parties were interested in harassing the applicant, or that the strangers making those extortion phone calls were acting for them or in any capacity of or under the direction or control of the state or government of Bangladesh and hence state protection would be available to the applicant if needed, or that he can safely relocate to other areas of Bangladesh such as Dhaka where he had lived for nearly a year with no trouble.

11.On 31 October 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 the following grounds for his intended challenge:

(1)     that the adjudicator failed to appreciate the presence of state acquiescence in the applicant’s case which led to the unfair outcome of his non-refoulement claim being rejected;

(2)     that the adjudicator failed to take into account or to give sufficient weight in the consideration of the applicant’s claim of the facts that the applicant did make a complaint to the police after receiving the threatening calls, that the police did not register the First Information Report for the applicant and did not investigate the matter;

(3)     that the adjudicator failed to properly consider or take into account of the situations that the state and the police in Bangladesh have failed to provide reasonable protection for its citizens in the consideration of his claim;

(4)     that the adjudicator failed to examine or give sufficient weight to the extended concept of state acquiescence with the inaction of government officials to provide protection to its citizens against risk of torture;

(5)     that the adjudicator failed to consider or give sufficient weight to those relevant COI about police corruptions in Bangladesh and that police would not assist anyone without bribes; and

(6)     that the adjudicator’s findings of improvements in effectiveness of police in Bangladesh is only based on speculations when COI show that Bangladesh was ranked amongst the world’s most corrupt countries.  

12.By then the applicant’s application was out of time by more than a month as Order 53, rule 4 of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13.Here the applicant did not make any application for extension or provide any reason for his delay other than that he was not aware of the requirement to do so within three months which can never be accepted as a good reason, and it would be necessary for me to see whether there are other factors which may constitute a good reason for extending time, and the most obvious one in these sorts of cases would be the merits of the substantive applications as illustrated by the proposed grounds which the applicant intends to rely upon for his application.

14.These are however all very broad and vague assertions of the applicant without much 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 in assessing police corruptions and effectiveness of authorities in protecting its citizens in Bangladesh, or how is the presence of state acquiescence relevant to his claim.  The applicant simply did not explain or elaborate. 

15.His argument that he did report to the police after the first extortion telephone call but which the police failed to investigate does not in my view advance his case any further or get around the fact that there was no evidence other than his own speculation that PBCP-J or AL were involved as correctly found by both the Director and the Board on the facts and evidence before them.

16.The fact is that once it has been established by both the Director and the Board that the risk of harms from those PBCP-J or AL people if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, the Board was perfectly entitled to conclude that there is no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.    

17.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.

18.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to extend time for his application, I accordingly dismiss his leave application.

Dated the 31^st 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