Amin Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 68/2018

[2018] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 68 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 the Applicant being absent 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 42-year-old national of Bangladesh who arrived in Hong Kong on 17 September 2004 with permission to remain as a visitor up to 1 October 2004 when he did not depart and instead overstayed until he was arrested by police on 8 January 2007. After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of rival political party Awami League (“AL”) and by his uncles over certain land dispute in the family.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Kalaigobindapur, Daud Kandi, Comilla District, Bangladesh.  After leaving school he assisted in his father’s grocery store, joined the political party Jamaat-e-Islami (“JeI”) which later formed a coalition with the Bangladesh Nationalist Party (“BNP”), and in 1999 he opened a furniture shop in Dhaka.

3.One day in early 2002 a group of AL members and supporters came to his furniture shop and demanded that he joined their party, and when he refused he was slapped on the face and insulted by them.

4.After the incident he received a phone call from the same AL member who had slapped him and demanded that either he joined their party or paid protection money otherwise they would ruin his business.

5.Sometime after the telephone call the same group of AL members came to his shop again with the same demands, and when the applicant refused they threatened to beat him up and to break all the furniture in his shop before they left.  The applicant then reported the matter to the local police but to no avail as AL was the ruling party and the police would not take any action against them.

6.In early 2003 the same group of AL people came to the applicant’s shop and damaged the furniture inside with hockey sticks, causing substantial monetary loss to the applicant, and when the matter was reported to the police again no action was taken by them.

7.In early 2004 after receiving another call from the same AL member threatening to ruin his business and to kill him, the applicant decided to close down his shop and to return to his home village, but he was told by his brother that their uncles were trying to steal their share of the family’s land in the village and had threatened to kill the applicant if he returned home, and hence his brother warned him to stay away from his home village.

8.The applicant therefore stayed hiding in Dhaka until August 2004 when he departed Bangladesh for China, and from there he entered Hong Kong where he overstayed and subsequently raised his torture claim which was later taken as a non-refoulement claim under the unified screening mechanism (“USM”), for which he completed a Supplementary Claim Form (“SCF”) on 5 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 28 August 2015 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”).

10.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no real intention on the part of those AL people to harm or kill the applicant or any reliable evidence of any threats from his uncles other than hearsay from his brother, and assessed the level of risk of harm from either of them upon the applicant’s return to Bangladesh after having departed for all these years as low, that in the absence of any official involvement in those threats that state 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 166 million people spread across a vast territory of more than 140,000 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 Dhaka where he had stayed before and where it would be difficult if not impossible for the AL people or his uncles to locate him.  

11.By a Notice of Further Decision dated 16 March 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”).

12.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 September 2015, and for which he attended an oral hearing on 21 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board found the general credibility of the applicant extremely doubtful as he displayed only a vague and generalized knowledge about his political party and its guiding principles or his asserted activities for the party, that his evidence relating to his encounters with the AL people is inherently lacking in credibility especially when considered in the context of the low level of his association with his party that it is so fanciful and lacking in credibility that the Board was satisfied that he has invented his claimed risk of harm from the AL people, whilst his claim of risk of harm from his uncles is based solely on hearsay from his brother as he himself had never personally encountered any such threats from them, and concluded on the totality of the evidence that it was not persuaded that the applicant had suffered any ill-treatment in the past in Bangladesh either in the hands of the AL people or his uncles, and that there is no ground for believing that he would suffer any such risks upon his return to Bangladesh.

14.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)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in the manner that the adjudicator had dealt with the applicant’s appeal;

(3)  procedural unfairness in the Board’s decision to refuse the applicant’s appeal as unreasonable or irrational in the public law sense;

(4)  procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant; and

(5)  that the Board had significantly relied on the source of news which is not officially recognized or is simply hearsay or outdated which led to groundless speculation that it would be safe for the applicant to return to his country of origin.  

15.The applicant requested an oral hearing for his application, but failed to appear at the scheduled hearing on 23 August 2018 for which he later wrote a letter to explain that he had a medical condition on that day and requested for another oral hearing.  He also produced an attendance certificate issued by Pok Oi Hospital in support of his claim, but when he again failed to appear at the rescheduled hearing on 14 September 2018 without any explanation, I decided to proceed to deal with his application in his absence.  I now turn to consider the proposed grounds for his application.   

16.They are however all just broad and vague assertions of the applicant containing several 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 how did the Board unlawfully fetter its discretion, or in what way was its decision unreasonable or irrational in the public law sense, or which COI was unofficially recognized or outdated or how did they lead to groundless speculation that it would be safe for the applicant to return to his home country.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17.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.

18.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 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.

19.The fact is that the applicant’s claim was rejected by the Board after hearing him in evidence at an oral hearing when it then duly analyzed and assessed his credibility in paragraphs 20 – 65 of its decision and did not find his evidence to be credible, and on that basis the Board was perfectly entitled to conclude of no substantial ground for believing that the applicant would face real risk of being subjected to ill-treatment or harm that would meet the high threshold required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

20.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them, that the court will not usurp their roles as primary decision makers, and that judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

21.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.

22.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 December 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

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 7 December 2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2210/15/9/63/B295

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ-9000533-17 (Formerly QA T/C 1122/13 & RBCZ 197/10)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)