Ahmed Faruque v. Ian Candy, Esq., and Another

HCAL 2/2018

[2018] HKCFI 2047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2 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 40-year-old national of Bangladesh who last arrived in Hong Kong on 16 October 2006 with permission to remain as a visitor but was arrested by police on 24 October 2006 for taking up unapproved employment, and was subsequently charged and convicted of breach of condition of stay and for making a false representation of his identity to the Immigration Department and was sentenced to six months’ imprisonment.  After discharge from prison in 2007 he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by her girlfriend’s elder brother and his friend who disapproved of their relationship.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born in Mymensingh, Bangladesh and was raised in Mitford, Dhaka, Bangladesh.  After leaving school he worked in his father’s aluminium scrap shop and he started courting his girlfriend PL in 1991.

3.In about 1999 when his girlfriend’s elder brother RH learnt about their relationship, he became displeased and demanded that the applicant stopped seeing his sister but the applicant still secretly continued with his relationship with his girlfriend.

4.In November 2001 the applicant came to Hong Kong with the passport of another identity and was subsequently arrested by police and repatriated to Bangladesh in February 2002.

5.One day in about mid-2005 the applicant ran into RH in Nogola, RH confronted him angrily accusing him for still seeing his sister and proceeded to punch him on the face before the applicant managed to run away.  Several days later the applicant was again confronted by RH who proceeded to punch and kick him before the applicant managed to escape and took shelter at his friend’s place, but a few days later when the applicant ran into RH’s close friend JB, he was attacked with a knife and with his forearm slashed before he was able to run away.

6.In September 2005, the applicant fled to Chittagong where he stayed without any incident until November 2005 when he was advised by his father to move to East Mohammadbag, and in December 2005 he went to Mymensingh where he made no further contact with his girlfriend, and on 16 October 2006 he departed Bangladesh for Hong Kong where he subsequently lodged his torture claim which was rejected by the Immigration Department on 6 August 2013.

7.Upon obtaining legal representation from the Duty Lawyer Service, the applicant lodged a non-refoulement claim on applicable grounds other than torture risk by completing a Supplementary Claim Form (“SCF”) on 27 August 2014 and attended screening interview before the Immigration Department.

8.By a Notice of Decision dated 23 January 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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”).

9.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from RH and JB upon his return to Bangladesh as low due to the low intensity and frequency of ill-treatment from them in the past and with no evidence that they still hold any grudge against the applicant after all these years when he had no further contact with his girlfriend, that their disputes were of private and personal nature and in the absence of any official involvement that state or police protection would be available to the applicant 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 spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from his home district such as Chittagong or East Mohammadbag where he had stayed before without any incidents and where it would be difficult if not impossible for RH or JB to locate him.

10.By a Notice of Further Decision dated 17 May 2017 the Director again rejected the applicant’s claim after receiving and considering the additional facts and further submission from him 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”).

11.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 2 February 2015, and for which he attended two oral hearings on 12 September 2017 and 3 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found significant inconsistencies in the applicant’s account of events relating to his relationship with his girlfriend and the threats from RH and JB, coupled with his own admission of having behaved dishonestly and for using false identities in Hong Kong have led to grave doubts about his general credibility that it could not attach any weight to any of his assertions of fact in relation to matters which he claimed were within his own knowledge or events at which he claimed to have been present, and concluded that he had invented the factual basis of his case in the hope of advancing his claim for non-refoulement protection.  

13.On 2 January 2018 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.  

14.These are however 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.

15.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 given insufficient time to prepare for his appeal.

16.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 SCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

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 14^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