Monjur Hossain v. Torture Claims Appeal Board

HCAL 247/2017

[2018] HKCFI 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 247 of 2017

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 (counsel for) 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 45-year-old national of Bangladesh who first arrived in Hong Kong on 11 July 2000 with permission to remain as a visitor up to 25 July 2000 when he did not depart and instead overstayed until he was arrested by police on 19 April 2003 and was subsequently deported back to Bangladesh after serving two months’ imprisonment for breaching his stay condition.  On 1 December 2006 he entered Hong Kong again on a passport with a different identity and overstayed again until 11 March 2008 when another removal order was issued against him.  On 17 June 2009 he raised his torture claim with the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by the area commissioner SR for withdrawing from his illegal activities and by his eldest brother GS for marrying a non-Muslim woman.  He has since been released on recognizance pending determination of his claim. 

2.The applicant was born and raised in Sutrapur, Gandaria, Dhaka, Bangladesh to a Muslim family where his mother and three siblings still live.  After leaving school he did not take up any job and in 2004 he joined the Awami League political party (“AL”) and became an assistant to SR who was the area commissioner of Gandaria, Dhaka assisting him in various party activities such as organizing and attending rallies and meetings.  When he subsequently realized that SR was also involved in extortions and forceful possessions of properties and land of other villagers, he wanted to leave but was threatened by SR and his men not to do so, and on one occasion in July 2005 he was punched and kicked by them who threatened to kill him if he dared to leave.

3.After the assault the applicant took shelter at his aunt’s place in Moghbazar, Dhaka for several weeks before returning to hide in his home, but one night he was abducted by SR’s men who brought him to SR and was beaten severely with knife cuts to both his abdomen and left arm.  Before he was finally allowed to leave, the applicant was warned that it was just a taste of what to come if he still refused to participate in their activities.

4.Upon returning home the applicant sought medical treatment from a doctor but did not report to the police for fear of revenge by SR, but he decided to leave Bangladesh for his own safety and departed on 16 September 2005 for Hong Kong again where he stayed for three months before returning to Bangladesh, but when he learnt that SR was still looking for him, he left Bangladesh again for Hong Kong in 2006 when he overstayed and was subsequently arrested by the police and lodged his torture claim.

5.While the applicant was released on recognizance pending the determination of his claim, he married an Indonesian woman in Hong Kong in 2011 who was a catholic, and when he informed his family in Bangladesh, they were displeased about him marrying a non-Muslim, in particularly his eldest brother who threatened to kill him if he returned to Bangladesh.  Eventually in 2013 the marriage ended in a divorce, and in 2014 he completed his Torture Claim Form (“TCF”) and Supplementary Claim Form (“SCF”) and also attended screening interviews before an Immigration Officer with legal representation from the Duty Lawyer Service. 

6.By a Notice of Decision dated 13 January 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on then all 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”).

7.In his decision the Director found on the facts of the applicant’s case that the risk of him being harmed by SR after all these years as low, the same of his eldest brother now that he had divorced his non-Muslim wife, that in the absence of any evidence to suggest the involvement of the state or the police in either threats, state protection would be available to him upon his return to Bangladesh, and that 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 143,000 square kilometers that it would not be unduly harsh for the applicant to relocate to areas other than his home district where he can live and work free of any threats from SR or his brother.

8.On 26 January 2015 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and attended an oral hearing on 8 June 2016 when he adopted the contents of his TCF, SCF and records of interviews as his evidence and answered questions put to him by the Adjudicator for the Board.  On 7 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board upon hearing the applicant in evidence expressed serious doubts over his credibility and for the reasons set out in its detailed analysis in paragraphs 63 – 82 found his accounts of his association with SR as vague, unrealistic and unreliable, while his fear of harm from his eldest brother is based entirely on hearsay and speculation, and concluded that it is not accepted that there is any real chance or risk that he would be harmed by SR or his family if he is refouled to Bangladesh. 

10.By a Notice of Further Decision dated 20 April 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any 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”).   

11.The applicant never filed any appeal to the Board against that further decision of the Director, and instead on 29 May 2017 he filed his Form 86 for leave to apply for judicial review of the Board’s decision of 7 March 2017, but neither in his Form 86 nor his supporting affirmation of the same date did he state or set out any grounds for his intended challenge other than just exhibiting to his affirmation a copy of the letter from the Board dated 7 March 2017 informing him of its decision which he now seeks leave to review.

12.Nevertheless and with rigorous examination and anxious scrutiny I have proceeded to consider the Board’s decision as well as both decisions of the Director, but I do not find any error of law or procedural unfairness in any of their decisions, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  On the facts of the case and on the Board’s findings as to his credibility for the reasons given, I am unable to think of any ground which the applicant could have relied on that may be said to be arguable in his intended application. 

13.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 4^th day of May 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