Md Alim Sheikh v. Torture Claims Appeal Board and Another

HCAL 975/2017

[2018] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 975 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 Bangladeshi man who last entered Hong Kong on 28 May 2006 with permission to stay as a visitor until 11 June 2006 but he did not depart and overstayed until he was arrested by police on 8 October 2006.  He was subsequently referred to the Immigration Department for investigation which revealed that he had in fact entered Hong Kong in the past with passports under other names and had been convicted of the offence of overstaying and sentenced to imprisonments before being deported back to Bangladesh.  On this occasion a removal order was issued against him on 28 November 2006, against which he then lodged an appeal which was dismissed by the Immigration Tribunal on 13 December 2006.

2.However, as he had earlier on 30 November 2006 already lodged a claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) which was taken as a torture claim made under Part VIIC of the Immigration Ordinance, Cap 115, he was therefore released on recognizance on 20 January 2007 pending the determination of his claim.  On 3 May 2013 his torture claim was rejected by the Director of Immigration (“the Director”).  On 13 May 2013 he appealed to the Torture Claims Appeal Board (“the Board”) which subsequently dismissed his appeal on 19 June 2013.

3.In-between the applicant also on 7 June 2013 lodged a non-refoulement claim with the Immigration Department on the ground that he would be killed by the local leaders of the Awami League in his home village in Bangladesh for his failure to repay them the money which his father had absconded in 2001, and revealed his background as follows.

4.He was born and raised in Munshigonj District, Bangladesh where his mother and four younger siblings still live.  After receiving some formal education he had worked in odd jobs including assisting his uncle in his farmland and helping out in his brother’s shop in Narayangonj.  One day in 2001 his father suddenly left their family house without telling anyone and disappeared without a trace.  Some men then came to his home and told his mother that his father had absconded with their money and that they wanted to talk to the applicant as the eldest son of the family, but as he was then working in his uncle’s farmland, they then told his mother that they wanted the applicant to meet with them at the local political club in the village market.

5.The applicant was however advised by his uncle not to meet with these men as they were involved with his father in illegal activities.  The applicant was also told by his neighbors that those men were leaders of the political party Awami League (“AL”) and were gangsters in extortion business, and since his father had absconded with their money, they would hold him being his eldest son responsible and it would be dangerous for him to remain in the same village.  As these men were still looking for him, the applicant therefore went into hiding at his uncle’s place in the Bogra District or his married sister’s place in Narayangonj District.

6.A few weeks later the AL leaders and their men again came looking for the applicant in his home village and when they could not find him in his house, they became aggressive and started smashing the household items and warned his mother that if he still failed to meet them, they would start hurting other members of his family.  His mother then reported the matter to the police and moved with his younger siblings to take shelter at her parents’ home in Gaodia, Ghorodour, Munshigonj.

7.After a while when it appeared that the police had failed to take any effective measure, the applicant’s uncle advised that for their own safety his family should leave Bangladesh, but due to their financial constrain it was decided that only the applicant would leave, which he did in May 2004 when he came to Hong Kong where he overstayed until March 2006 when he was deported back to Bangladesh, but when he learnt that the AL leaders were still looking for him, he left for Singapore first and from there he flew to Hong Kong on 28 May 2006 and as noted above he subsequently made his non-refoulement claim, and on 1 April 2016 he completed his Supplementary Claim Form for his non-refoulement claim with legal representation under the Duty Lawyer Service, followed by a screening interview on 27 May 2016 at the Immigration Department. 

8.By a Notice of Decision dated 22 July 2016 the Director rejected his claim on all then 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 (“CIDTP”) 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”).

9.In his detailed decision the Director found the applicant’s claim unsupported by any evidence other than just his bare assertions and that even on that basis his fear was assessed as not real or imminent, that state protection is available to further lower or negate such risk in the absence of any evidence to suggest that the threats from the AL leaders had had the sanction, involvement or acquiescent of the state or the police, that objective Country of Origin Information (“COI”) show that reforms have been on-going in Bangladesh to combat police corruptions with positive results in recent years to provide avenues for the public to seek justice and protection, and that internal relocation alternatives are also available for the applicant to return to other areas of Bangladesh with a large population of 168 million people spread over vast territory of more than 148,000 square kilometers where he can live and work safely from the threats of those men.     

10.By a letter dated 2 August 2017 the Director rejected the applicant’s claim again in the absence of any response from him to an earlier invitation to submit any additional information 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”).

11.By then the applicant was already in the process of appealing to the Board against the earlier decision of the Director, which appeal he filed on 1 August 2016 and for which he attended an oral hearing on 7 September 2017 before the Board during which he gave evidence and answered questions from the Board.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

12.In its decision the Board gave details from paragraphs 39 to 49 of its concern over the reliability of the applicant’s evidence about a number of key aspects of his claims as confusing, vague and inconsistent over time and far from convincing, and that more significantly in terms of its assessment of the future risks he would face if he returned is the passage of time and absence of adverse action taken against him or his family members in the 16 years that have passed since the claimed disappearance of his father, and found it unacceptable that there are substantial grounds to believe that the applicant faces a real risk of being subjected to harm that would rise to the minimum threshold level of degrading treatment or punishment, or torture or cruel or inhuman treatment or punishment if he returned to Bangladesh in the reasonably foreseeable future.  The Board therefore concluded that the applicant is not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism.    

13.Nevertheless on 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the decisions of both the Director and the Board, and in his supporting affirmation of the same date he set out his grounds for his intended challenge which can be summarized as follows:

(a) failure to consider properly or adequately the effectiveness of the reforms the state of Bangladesh is said to have undertaken;

(b) failure to take into account the concept of extended state acquiescence to private acts against victims of torture;

(c) failure to properly or adequately assess the risks that he may face in Bangladesh;

(d) failure to conduct proper or adequate enquiry into COI relevant to his claim and being selective in the reliance of such COI;

(e) failure to properly consider the psychological impact of the threats made against him.   

14.These are in fact all bold and vague statements which the applicant has not provided any particulars or specifics in support of his claim, and I do not see any basis or merit in any of them.  For example, in grounds (a) and (d), it is clear that both the Director and the Board did take into account and carefully consider all those objective COI relevant to recent reforms taken place in Bangladesh after finding corroboration of and accepting the applicant’s concern over police corruptions, and I do not find any merit at all in the suggestion of them being selective in their reliance of the COI when assessing his case.

15.Similarly I am unable to see any merit in ground (b) in the absence of any evidence to suggest that the police or the state had had any involvement with those AL leaders or their men or any acquiescence with any of their actions, assuming that they were true.  Clearly the Board has already taken proper care to take into account of all the relevant evidence and materials in its consideration and assessment of the applicant’s claim and arrived at its conclusion as follows:

“ 58. In the present case, as discussed above, having carefully considered the evidence provided by the Petitioner to support his claims to be at risk of harm from the ‘senior AL leaders’ and ‘gangsters’ whom he claims his father stole money from, the Board has serious concerns about the reliability of his evidence and the general credibility of his claims, as his evidence about a number of key aspects was confused, vague and inconsistent over time, and far from convincing. In light of those concerns and the passage of 16 years without any adverse action taken against him or his family, the Board has no confidence in accepting, and does not accept, on evidence before it, that there are substantial grounds to believe that the Petitioner faces a real risk of being subjected to harm that would rise to the minimum threshold level of degrading treatment or punishment, or torture or cruel or inhuman treatment or punishment, if he returned to Bangladesh in the reasonably foreseeable future.”

16.Accordingly and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error in law or procedural unfairness in any of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in his intended application for judicial review, and I therefore refuse his leave application.        

Dated the 13^th day of April 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