Rashel Bapari v. Torture Claims Appeal Board and Another

HCAL 804/2017

[2018] HKCFI 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 804 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 29 December 2013 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 1 January 2014 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by members or supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending determination of his claim.

2.The applicant was born and raised in Nayanondo Village, Munshiganj District, Bangladesh to a family of supporters of the political party Bangladesh Nationalist Party (“BNP”). After leaving school he worked as a tailor at home and in 2006 joined the local BNP as a member participating in rallies, putting up posters and distributing leaflets for the party.

3.In late 2006 when BNP held rallies all over the country against AL and during one of it in the applicant’s home district, a big fight broke out between supporters of the two parties during which the applicant was hit on the back and suffered bruises which was finally broken up by the police.  For the next two years supporters of the two parties continued to have violent conflicts from time to time when the applicants and some of his fellow members of BNP would be attacked by the AL supporters with clubs and sticks.

4.In December 2008 AL won the general election and became the country’s ruling party when things started to quiet down and the applicant returned to focus on his tailoring work at home.  However, in 2012 BNP started to organize rallies in their protests against the government and the applicant became involved again, and when violent conflicts between members of BNP and AL broke out again, the applicant on one occasion was hit in the head and lost consciousness and had to be hospitalized, whilst his subsequent report to the police was to no avail as he was unable to identify his assailant.

5.One day in August 2013 some AL members came to the applicant’s home to threaten him to stop participating in any of BNP’s activities or else they would kill him.  After they left the applicant reported the matter to the police but again to no avail.  In September 2013 when BNP planned to organize another rally and the applicant wanted to participate but was told that a member of BNP had been abducted by the AL people who were also looking for him, he became frightened and took shelter at his aunt’s place in Louhojzong where he hid until December 2013 when he decided to leave Bangladesh for his own safety and departed on 27 December 2013 for Mainland China, and from there he sneaked into Hong Kong on 29 December 2013 and subsequently lodged his non-refoulement claim with the Immigration Department, and for which he completed his Non-refoulement Claim Form on 30 December 2015 with legal representation from Duty lawyer Service.

6.By a Notice of Decision dated 13 June 2016 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”).

7.In his decision the Director found on the facts of the applicant’s own case that apart from being attacked during fights in rallies, he was not specifically targeted by the AL people as he was able to live and work in his own home for long periods without any threats or incidents from them in between elections, that there is no evidence to suggest that the government or the police were involved in those actions when in fact members of both BNP and AL had been arrested for fighting, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the applicant to move to areas other than his home district such as Dhaka where he can live and work free of any threats from those AL people. 

8.By a Notice of Further decision dated 12 June 2017 the Director again rejected the applicant’s claim after receiving and considering further representation submitted by the Applicabt in response to  an earlier invitation to submit 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”).

9.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 23 June 2016, and for which he attended an oral hearing on 14 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board agreed with the Director that on the facts and evidence of the applicant’s case that he was not personally a specific target of the AL supporters but rather he was caught by the general animosity between rival political parties which led to those fights in which he together with other supporters were attacked, that there is no evidence to suggest that he would be personally at risk of being subjected to harm or ill-treatment upon his return to Bangladesh, and even in the unlikely event that such risks still persisted that state protection and internal relocation alternatives would be available to the applicant to live and work safely in other cities in Bangladesh.  

11.On 25 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he simply stated as follows:

(1) that his claim has not been properly considered; and

(2) that he has not been given time to submit further documents in support of his claim.

12.In the absence of any particulars or specifics put forward by the applicant or any further elaboration by him, there is simply no substance at all in ground (1) to show in what way was his claim not properly considered by the Board.  I do not find any merit in this complaint of the applicant.

13.As for his complaint under ground (2) of not being given time to submit further documents in support of his claim, I note that he did produce certain documents to the Board at his oral hearing, but there is no indication that he had requested for time to produce further documents.  Even if he did, he did not subsequently up to the time of the Board’s decision some two months after the hearing produce any, nor did he do so even now in his leave application for judicial review before me.  I do not find any merit in this ground of the applicant either.     

14.In the premises and having considered 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.

15.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 8^th day of June 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