Ali Siraj v. Torture Claims Appeal Board

HCAL 416/2017

[2018] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 416 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 50-year-old national of Bangladesh who arrived in Hong Kong on 17 August 2006 with permission to remain as a visitor up to 31 August 2006 when he did not depart but instead overstayed until 6 January 2007 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he raised his torture claim with the Department on 19 March 2009 on the basis that if he returned to Bangladesh he would be harmed or killed by the brothers of a man whom he was falsely accused to have murdered by the family.  He has been released on recognizance pending determination of his claim.     

2.The applicant was born and raised in Dhaka, Bangladesh where his wife and three children still live.  After leaving school he first worked in a motors company before opening and operating his own furniture business.  He was a supporter of the local political party Awami League (“AL”) and in 2001 became a member of Jubo League which was the youth wing of AL.

3.In about 2005 when he was running in the local election for the presidency of Jubo League, a neighbor came to him for help that he had been robbed of his wallet by three brothers known to be local gangsters.  When the applicant came with several friends to the brothers’ home he found only one of them RA there with his mother in the house where they had a fierce quarrel during which he slapped RA on the face once, and eventually recovered the wallet for the neighbor before he left RA’s house.

4.A few days later the applicant heard that RA had died and that his mother had accused him of murdering her son, as a result RA’s brothers were looking for him for revenge, while the police were also looking for him for their investigation.  The applicant became frightened and left Bangladesh to take shelter in various places in India, Nepal and Bhutan.  When he later returned to Bangladesh he would stay away from his home, but when he heard that RA’s brothers were still looking for him, he left India again and eventually arrived in Hong Kong on 17 August 2006 where he lodged his torture claim, and later completed his non-refoulement claim forms with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 5 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s 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 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”). 

6.In his decision the Director found no evidence other than the applicant’s bare assertion that RA had died and that his fear of revenge from RA’s brothers was based entirely on hearsay and speculation, as even on his own case there is no evidence of any direct threats from the brothers and that he can always seek police protection upon his return to Bangladesh if necessary, and the fact that he was able to come and go from Bangladesh without any problem show that the police were not looking for him, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with such a large population of 169 million people spread over a vast territory of more than 140,000 square kilometers that he can safely relocate to areas other than his home district and free from any threats from RA’s family.

7.By a Notice of Further Decision dated 10 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”).  

8.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 18 August 2015 and for which he attended two oral hearing before the Board on 7 April and 12 May 2017 but on both occasions he declined to give any evidence or answer any questions form the adjudicator for the Board.  On 11 July 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

9.In its decision the Board similarly found the applicant’s claim to have been built on speculations and hearsay evidence with no solid fact to substantiate his claim when he declined to testify or answer any questions in not just one but two hearings scheduled by the Board for his appeal, and that even if there is any substance in his fear of harm from RA’s family, state protection and internal relocation alternatives are available for his safe return to Bangladesh and hence his claim failed on all applicable grounds. 

10.On 17 July 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, 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 just repeating his claim that his life is at risk in Bangladesh and that he would be tortured and killed if he is to return to his home country.

11.Nevertheless, and with rigorous examination and anxious scrutiny I proceeded to consider the decisions of both the Director and the Board, and 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.  On the facts of the case it is plain that both the Director and the Board were entitled and with good reasons to reject the applicant’s claim.

12.In the premises I do not see any ground that the applicant could have relied on in his intended application for judicial review, and accordingly I refuse his leave application. 

Dated the 11^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