Sujan Mohammed v. Gregory Brock, Esq, Torture Claims Appeal Board

HCAL 429/2018

[2020] HKCFI 1034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 429 of 2018

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:

Application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Bangladesh who entered Hong Kong illegally on 27 October 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised 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 Awami League (“AL”) and/or by the police over certain false charge against him.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jogania, Ariol Bazar, Munshiganj, Bangladesh.  After leaving school he twice went to work in Singapore, and upon his return to Bangladesh he worked as a farmer and joined the political party Bangladesh Nationalist Party (“BNP”) in the local chapter of Ariol Union area regularly attended its meetings and rallies, and had frequently come into violent conflicts and clashes with rival AL supporters.

3.During a particular violent clashes between the supporters of the two rival parties when the Applicant’s father and an uncle were injured while one of AL members died during the fight, and after the Applicant had fled to Chittagong but when he heard that his father and uncle had been arrested by the police in their investigation over the death of the AL member and that they were also looking for him, the Applicant therefore departed Bangladesh on 20 October 2015 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 20 December 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 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”).

5.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the AL supporters or the police upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the AL people or being pursued by the police, that in the absence of official involvement that state or police protection would be available to the Applicant from any threats from the AL supporters 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 squarekilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Khulna where it would be difficult if not impossible for those AL people to locate him.

6.On 3 January 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 July 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 July 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found major discrepancies and inconsistencies in the Applicant’s account of events allegedly occurred in Bangladesh prior to his departure and that those documents produced by him were fabricated that he was found not a witness of truth, that it was not accepted that he was ever a BNP member or that he had been involved in a fight that led to the death of a AL member or that he had ever attracted any adverse attention from the AL people or the police or authorities of Bangladesh, and concluded that he had failed to establish his claim under any of the applicable grounds. 

8.On 4 August 2017 the Applicant filed his Form 86 under HCAL 485/2017 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 eight 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.  

9.On 9 March 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of those grounds reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision, and that there was no realistic prospect of success in his intended application.

10.The Applicant did not lodge any appeal against that decision, but instead on 16 March 2018 filed another Form 86 in these proceedings now before me again for leave to apply for judicial review of the Board’s decision, and put forward the same eight grounds as before plus an additional ground that “the Adjudicator [had] misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in orderto establish substantial grounds to believe that there was a risk of torture in the future”.

11.Given the Board’s rejection of his claim on the basis of its adverse finding on his credibility, this additional ground of the Applicant would not in my view assist him in advancing his claim any further, and since he already failed to obtain leave from the court in HCAL 485/2017, it is clearly an abuse of process for him to try to re-litigate his case bybringing a second judicial review in respect of the same decision of the Board, and also forfailing to inform the Registry of the same when he field his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

12.Accordingly this second leave application for judicial review by the Applicant is hereby struck out and dismissed.

Dated the 4^th day of June 2020.

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