Case Document

100%Judiciary

HCAL 70/2018

[2018] HKCFI 2105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 70 of 2018

BETWEEN

	Miah Mohammad Pakhi	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally on 4 September 2014 and was arrested by the police on 6 September 2014. 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 supporters of rival political party 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 Islampur, Monoomukh, Raj Nagar, Moulvibazar, Bangladesh. After leaving school he first worked as a farmer and then as a rickshaw driver, and joined the political party Jamaat-e-Islami (“JeI”) as an ordinary member and regularly attended their meetings and rallies.

3.In 2013 some of the members and supporters of rival party AL invited the applicant to join their party, and when he refused they started to harass and threaten him, and one day on 10 December 2013 when he was working driving his rickshaw, he was surrounded by several AL members and was dragged off his rickshaw and slapped several times on his face, but as other passers-by started to gather at the scene, the AL people left after warning him that next time he would not be spared.

4.On 18 February 2014 the applicant was again confronted by the same group of AL supporters when he was punched and kicked and was hit with a wooden stick that he lost consciousness. He was subsequently taken by his brother to the village clinic for treatments of cuts and bruises on his body.

5.After recovering from his injuries and fearful of another attack the applicant left home to take shelter at his aunt’s home in Tajpur, and then to another relative’s place in Sylhet when he was advised to leave Bangladesh for his own safety, and so on 31 August 2014 he departed for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 27 September 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 took into account of all the relevant circumstances of theapplicant’s claim and assessed the level of risk of harm from the AL people upon his returnto Bangladesh as low due to the low intensity and frequency of their ill-treatment in the past which ceased after he left his home district and therefore the risk is localized, that in the absence of any official involvement in those incidents that state or police protection would be available 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 157 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 area away from his home district such as Chittagong where it would be difficult if not impossible for those AL people to locate him.

8.On 9 October 2017 the applicant filed his appeal to the Torture Claims Appeal Board(“the Board”) against the Director’s decision, and for which he attended an oral hearing on13 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 2 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found the ill-treatment received by the applicant in his claim did not attain the minimum level of severity under any of the applicable grounds, that there is no evidence of any official involvement that reasonable state protection would be available to the applicant, and given the threats from those AL people were localized that it would not be unduly harsh for the applicant to relocate to other parts of Bangladesh such as Chittagong.

10.On 15 January 2018 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 Board failed to apply high standards of fairness by not ensuring that the hearing bundle and skeleton argument of the Director be delivered to him within reasonable time with appropriate interpretation so that he could properly prepare for his appeal before the Board;

(2) that the Board failed to apply high standards of fairness in its decision making process and erred in approaching his appeal by simply trying to see whether he could find fault with the decision of the Immigration Officer when the Director was excused from attending the appeal hearing which shows a general practice of the Board to not question or find fault with the decision of the Director; and

(3) that the Board failed to take into consideration when making the decision that the applicant was not legally represented in the appeal process and failed to take into account that he has insufficient legal knowledge and for failing to inform him that he could complain.

11.For the applicant’s complaint in ground (1) of 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.

12.Even if it is true that the hearing bundle indeed came to him late as alleged, and theapplicant 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 decision 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 he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

13.As for his complaint in ground (2) of the Board’s approach to his appeal by simply finding fault with the decision of the Director, which is clearly not the case as it is plain from its decision that the adjudicator did proceed to deal with the appeal as a re-hearing of all the evidence and issues of the applicant’s claim, and I fail to see any relevancy or rationale involving the Director in the process as the mechanism for the appeal as a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how that would support his complaint which I find to be wholly without merit.

14.As for his complaint of the Board failing to apply high standard of fairness without taking into consideration of him not being legally represented in his appeal process and fornot advising him that he could complain, it has been held by the Court of Appeal that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

15.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator at his oral hearing with the assistance of an interpreter and without any difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

16.The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [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 I accordingly refuse his leave application.

Dated the 21^st day of September 2018.

	(NG Ka-wing)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 21 September 2018 Miah Mohammad Pakhi Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21 September 2018 Torture Claims Appeal Board /Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8788/17/10/118/B1012 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1954/17 (formerly RBCZ/3001770/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)