Md Azizul Islam v. Adam Moore, Esq., Torture Claims Appeal Board

HCAL 722/2018

[2019] HKCFI 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 722 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 49-year-old national of Bangladesh who entered Hong Kong illegally on 21 March 2007 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be pursued by the police over a fighting incident in 2001 and would be harmed or killed by certain supporters of rival political party Bangladesh Nationalist Party (“BNP”), and when his torture claim was rejected, he then lodged a non-refoulement claim on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Balapara, Shailakupa, District Jhenaidah, Bangladesh.  After leaving school he first worked as a farmer in his home village and then as a salesman in Jhenaidah, got married and raised four children, and joined the Awami League party (“AL”) regularly attended their meetings and rallies.

3.In 2001 when he was participating in AL’s election campaign, a fight broke out between supporters of the two rival parties AL and BNP for which he together with many other people were subsequently arrested by police for fighting.  After his release on bail, he was required to report to the police from time to time pending their investigation.

4.In 2002 he started to have conflicts with a local BNP member AT in their campaigns for votes from the villagers in election, and one day in 2006 AT was arrested by the police over certain illegal activities and was brought back to the village when he was subsequently killed in a shooting incident, and after the police brought AT’s body to a house next to the home of the applicant’s uncle, AT’s associates started to suspect that the applicant might be involved in his death and came to his home twice looking for him, and when they could not find him they threatened his family that they would kill him in revenge for AT’s death.

5.As a result the applicant became fearful for his life and fled to take shelter at a friend’s place in Dhaka and subsequently departed for China on 15 March 2007, and from there he sneaked into Hong Kong and lodged his torture claim and was released on recognizance.  On 10 November 2010 he was arrested by police for taking up employment without permission for which he was later convicted and sentenced to imprisonment for 12 months.

6.On 13 February 2012 his torture claim was rejected by the Immigration Department, and upon his subsequent appeal was also dismissed, the applicant lodged a non-refoulement claim for which he later completed a Supplementary Claim Form (“SCF”) on 10 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 31 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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”).

8.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of being arrested by the Bangladeshi police and/or being harmed or killed by the BNP people upon his return to Bangladesh due to the fact that he was able to leave Bangladesh without problem which show that he was not wanted by the local police which was in any event not valid reason for non-refoulement protection, whilst there is no evidence of any ill-treatment being inflicted by AT’s associates on the applicant whether physical or mental which might attain the threshold of minimum level of severity under any of the applicable grounds, or that they would still have any adverse interest in him after all these years, that in the absence of 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 areas away from his home district such as Chittagong or Dhaka where he had stayed without incidents prior to his departure and where it would be difficult if not impossible for those associates of AT to locate him.

9.On 7 June 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 23 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board when he confirmed that he was no longer concerned about being pursued by the police over the incident in 2001 as that case had since been closed.  On 20 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the applicant’s claim that AT’s associates would blame him for AT’s death based largely on the proximity of his killing to the house of the applicant’s uncle to be too far-fetched, that the risk to the applicant encountering harm from unidentified former associates of AT in his home village to be negligible, and concluded that it was not satisfied that the applicant has discharged his burden of establishing that he faces a real risk of harm that would warrant international protection now or in the foreseeable future if he were refouled to Bangladesh, as it would not be unreasonable or unduly harsh for him to relocate safely to other areas away from his home district such as Dhaka where he had stayed in the past without any incidents.    

11.On 25 April 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)  misdirection in law in that the adjudicator misdirected himself on the law by taking into account that the applicant and/or the other applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  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;

(3)  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;

(4)  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;

(5)  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;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

12.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.

13.The only other complaint which the applicant appeared to have made with any elaboration was in his supporting affirmation of the same date when he claimed that the hearing bundle for his appeal before the Board was provided to him only a few days before his appeal hearing 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.

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

15.The fact is that it has been established by both the Director and the Board in their respective decision 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.

16.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.

17.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 12^th day of April 2019.

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