Khan Md Ataur Rahman v. Chan Ling-ling Tracy, Esq and Another

HCAL 3/2018

[2018] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3 of 2018

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 53-year-old national of Bangladesh who entered Hong Kong illegally on 22 January 2014 and was arrested by 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 rival political party Awami League (“AL”) or by the police in certain false charge made against him.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kawra, Shahaji Bazar, Madhabpur, Habiganj, Bangladesh.  After leaving school he moved to Dhaka in 1971 where he ran a store until 1991 when he returned to Habiganj to work as a farmer.  In 1998 he joined the political party Bangladesh Nationalist Party (“BNP”) as a member and participated in their meetings and rallies.

3.In about 2009 the applicant together with some BNP members had a dispute with certain AL members over the purchase of certain public land in Shahaji Bazar which led to the breakdown of their negotiation and descended into a fight between the members with knives and sticks until police arrived when they all fled.

4.After the fight the applicant was taken to the hospital for treatment to his head injury.  Upon his discharge on the following day he was informed by his family that the police were looking for him and other BNP members for being involved in the fight, and he therefore fled to Dhaka where he took shelter at a friend’s place for two months without incidents until he heard from his relative that there was a police warrant against him for the charge of attempted murder as two of the AL members involved in the fight had been seriously injured.

5.The applicant therefore surrendered to the Habiganj District Court and was remanded in a jail pending trial during which he was beaten up by the prison guards until three months later when his lawyer was able to put up bail for him.  Upon his release the applicant feared for his own safety and that he would not be treated fairly by the police or the court in the forthcoming hearings, and decided to leave Bangladesh when he returned to Dhaka to make the necessary arrangements, and on 21 January 2014 he flew to China and from there sneaked into Hong Kong and lodged his torture claim, which was subsequently taken to be a non-refoulement claim upon the commencement of the unified screening mechanism, and for which he completed a Non-refoulement Claim Form (“NCF”) on 31 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 1 June 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 applicant’s problem with members of AL a private and personal dispute arising from a failed negotiation over the purchase of a piece of land that it is doubtful that after all these years that the dispute has still not been resolved back home that it is unlikely that he would still be targeted by the AL members, and that in the absence of any evidence of official involvement that state or police protection would be available to him if resorted to, and that reliable and 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 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 or Dhaka where it would be difficult if not impossible for those AL people to locate him and where he had stayed before without any incidents prior to his departure from Bangladesh.

8.As for his claim of being pursued by police for failing to attend the court hearings, the Director doubted that it was indeed the case given the fact that he was able to leave Bangladesh in 2014 without any difficulty, but that if in fact it was true it would then make the applicant a fugitive of law as he had fled Bangladesh to avoid police arrest and due process of the law, and in the absence of any evidence to suggest that the resultant legal sanctions in Bangladesh would be so disproportionate to amount to torture, that the applicant would not be entitled to non-refoulement protection in Hong Kong.     

9.By a Notice of Further Decision dated 31 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”).

10.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, which appeal he filed on 10 June 2016, and for which he attended an oral hearing on 13 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found serious discrepancies in the applicant’s evidence including those documents produced by him to doubt his claim about the risk of harm from the AL members and the resultant police pursuit and court case against him, that if they were indeed true that absent any official involvement that state protection would be available to him if resorted to, that on the basis of objective COI on judicial system in Bangladesh that there is no evidence to suggest that the applicant would not be given a fair trial if he had not absconded, and that reasonable internal relocation alternatives would be available to him in other areas in Bangladesh away from his home district such as Dhaka where it would be difficult if not impossible for those AL members to locate him.     

12.On 2 January 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds 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.  

13.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.

14.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 mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

15.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 interview and the Director’s decisions should be well familiar to him and had already been 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 at the appeal 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.  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.

16.As for his last complaint of not being screened by the Immigration Department before his claim under BOR 2 risk was rejected, in the absence of any response from him to their earlier invitation for him to submit any additional facts relevant to his claim under BOR 2 risk, the Director was entitled to assess his such claim on the presentation and evidence already made available to him, and I do not find anything amiss arising from the fact that no further screening interview was arranged by the Director for the applicant.  At any rate, the applicant never raised any such issue when he attended his oral hearing before the Board almost four months later, nor did he then submit any additional facts relevant to his claim under BOR 2 risk.  Even now in his leave application including an oral hearing before me that he did not do so.  In the circumstances I do not find any merit in this complaint of the applicant.

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 I accordingly refuse his leave application.

Dated the 7^th day of September 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