Md Kader v. Fraser Syme, Esq., and Another

HCAL 860/2017

[2018] HKCFI 2109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 860 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 entered Hong Kong on 12 December 2005 with permission to remain as a visitor up to 26 December 2005 when he did not depart and instead overstayed until 30 April 2006 when he was arrested by police and was referred to the Immigration Department for investigation.  On 5 May 2006 he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by his four cousins over a land dispute between their families and for refusing to join their political party Bangladesh Nationalist Party (“BNP”) or their illegal activities.  He was then released on recognizance, but when his torture claim was rejected and when he was again arrested by police for failing to report his recognizance, he lodged a non-refoulement claim on 5 June 2013 on the same basis as before, and has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in Village Deshgaon, Hajiganj, District Chandpur, Bangladesh.  His grandfather has two sons, his father and his uncle.  He is the only son in his family with two sisters, while his uncle has four sons (his cousins) who lived adjacent to the applicant and were members of BNP who were also involved in drug trafficking.

3.The applicant’s grandfather owned a piece of land in the village, and after his death in 1995 the land passed to his father and his uncle in equal share, but as there were four cousins on his uncle side while he was the only son on his father’s side, his four cousins did not think it was fair to share the land equally and demanded that they be given a bigger share, and when his father refused, the cousins continued to dispute the land and started to bully the applicant, and on one occasion in 1997 they assaulted him with wooden sticks that he suffered injuries to his head and his left hand.

4.In late 1998 the applicant was approached by the cousins to assist in their drug trafficking activities and to join BNP, and when he turned them down fearing that he mightbe set up for arrest by the police, he was beaten up by the cousins on the spot resulting with a head injury.  After the incident he was advised by his parents to take shelter at a friend’s place in Dholaipar, Dhaka to avoid the cousins where he found a job working in a fruit store.

5.In 2001 while he returned to his home village to visit his parents, his cousins came to demand that he joined BNP and threatened him when he refused as he was not interested in politics.  After a short stay he left to return to Dholaipar.

6.One day in late 2004 when the applicant was told by his father that his cousins had threatened to come to kill him in Dholaipar, he therefore fled to Tongi where he stayed for several weeks before returning to Dholaipar.

7.In early 2005 the applicant received another message from his father that as his cousins were still looking for him, it would not be safe for him to remain in Bangladesh, and so he made arrangements through an agent and departed for Hong Kong in November 2005 when he made two side trips to China before returning in December 2005 to Hong Kong where he overstayed and subsequently raised his torture claim, and when it was rejected he then lodged his non-refoulement claim for which he completed a Supplementary Claim Form (“SCF”) on 29 April 2017 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 22 May 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 and 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”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his cousins upon his return to Bangladesh as low after all these years since his departure in 2005, that it was a private family dispute without 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 of 156 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 to other area away from his home district such as Chittagong or Dhaka where he had stayed before for more than five years without any incidents and where it would be difficult if not impossible for his cousins to locate him. 

10.On 2 June 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 on 1 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found multiple inconsistencies in the applicant’s claim but gave him the benefit of the doubt by accepting his asserted threats arising from his disputes with his cousins, but having regard to the passage of time since the disputes and that he had lived unharmed in Dhaka for more than five years prior to coming to Hong Kong, it found that there is only a remote or speculative chance that his cousins would become aware of his return to Bangladesh in a city far away from his home district, and concluded that his non-refoulement claim has failed on all applicable grounds.    

12.On 9 November 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 other documents all of which were in English and thereby given him 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 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 SCF, records of his screening interviews 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 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 better 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.

16.Further, as it has been established by both the Director and the Board in their decisions that the risk of harm from the applicant’s cousins is a localized one and that it is not unreasonable or unsafe for him to relocate to another 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, when in particularly that he was given the benefit of doubt by the Board as to his asserted events of his claim which was rightly rejected for the reasons noted above.

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.

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