Reza Sahin v. Adam Moore, Esq., and Another

HCAL 1078/2017

[2018] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1078 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 33-year-old national of Bangladesh who entered Hong Kong illegally on 7 July 2014 and was arrested by the police on the same day.  After being 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”). He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Majhialy, Union Jahurpur, Bagherpara, Jessore, Bangladesh.  In 2009 he joined the Bangladesh nationalist Party (“BNP”) as a member organizing meetings and rallies, putting up posters and banners, and doing promotions for the party in his home village, and in 2010 he became the party’s general secretary in the District of Jessore.

3.Thereafter members of rival party AL started to harass and threaten him to quit BNP and to join AL, and when he refused, they would make verbal threats to kill him.  One day in January 2014 when he was on his way to the village market, he was assaulted by several members of AL with sticks and machetes that he was stabbed in his left shoulder and right elbow before making his escape to receive treatments in the village clinic.

4.The applicant then reported the assault to the police, but when he felt that the police were unwilling to assist and that his life was in danger, he fled to his uncle’s place in Benapol where he hid for two months before moving to Barishal to take shelter at his cousin’s place. With his family’s assistance he departed Bangladesh on 6July 2014 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 7 July 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”).

6.In his decision the Director found the low intensity and frequency of ill-treatment from the AL people in the past indicative of small low risk of harm to the applicant upon his return to Bangladesh, that the absence of any evidence of official involvement in the threats from the AL people show that state 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 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 to move safely to other areas away from his home district such as Dhaka or Chittagong where it would be difficult if not impossible for those AL people to locate him.

7.By a Notice of Further Decision dated 6 June 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”).

8.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 20 July 2016, and for which he attended an oral hearing on 14 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found numerous inconsistencies in the applicant’s evidence with disparity between his claim in his NCF/screening interview before the Immigration Department and at his oral hearing before the adjudicator as set out in details in paragraphs 58 – 67, and concluded that nothing he told the adjudicator or presented in evidence can be relied upon and that he is not a witness of truth, that if he was indeed assaulted as he claimed, it was regarded as a random act of robbery with nothing to do with any political dispute, that his lack of knowledge of the politics of BNP or of the 2014 elections in his evidence shows that he was at most no more than a low-level supporter of BNP and would not have attracted any attention from the AL members, that his claims of the police not willing to help him as inherently implausible, and that he was able to live in other parts of Bangladesh for five months without incidents and departed unhindered show that he was of no interest to the AL people or the authority of Bangladesh.   

10.On 14 December 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 himself 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 his 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.  

11.These are however all just 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.

12.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 with the majority of the documents in English and without the assistance of any interpreter there was simply insufficient time for him to prepare for his appeal.

13.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, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had earlier already been 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 the appeal hearing before the Board he was assisted by an interpreter but he never raised any issue with the hearing bundle or requested the adjudicator for further time or adjournment to enable him to better 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.

14.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.

15.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