S M Showan v. Torture Claims Appeal Board

HCAL 980/2017

[2018] HKCFI 1503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 980 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 the Applicant being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 43-year-old national of Bangladesh who arrived in Hong Kong on 26 April 2014 with permission to remain as a visitor up to 10 May 2014 when he did not depart but instead overstayed until 16 May 2014 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 18 May 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by certain members of rival political party Awami League (“AL”) for refusing to join their party.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Mirhazibag, Dhaka, Bangladesh to a family of prominent members of the Bangladesh Nationalist Party (“BNP”).  After receiving 19 years of formal education including a degree in journalism in Switzerland, he returned to Dhaka, Bangladesh to work in the trading business of his father who was an important permanent member of the highest national central committee of the BNP, of which the applicant joined in 1991 and was elected the joint secretary of the central committee of Jubo Dal the youth wing of BNP in 2011.

3.Nothing eventful happened to the applicant until the general election in 2014 when there were clashes between supporters of BNP and AL, and on 5 January 2014 some AL members came to his home looking for him, and when they did not find him they told his parents that they would kill the applicant unless he quit BNP and joined AL.

4.After he was told about the threats, the applicant went into hiding in his family’s ancestor home in the Shariatpur District of Dhaka, but when he later heard that the AL members had brought false charges to the police against him for robbery and attempted murder and that the police had raided his home in Mirhazibag looking for him, and that it was later burned down by AL supporters, the applicant felt no longer safe for him in Bangladesh, and so he arranged to fly out of Bangladesh on 25 April 2014 but on his way to the airport he was ambushed by men whom he suspected to be from AL who attacked him with wooden clubs and iron rods until other BNP members arrived to save him, and after receiving treatments at a clinic, the applicant finally flew off on the same day for Hong Kong where he subsequently overstayed and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form (“NCF”) on 4 January 2016 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 14 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on 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”).

6.In his decision the Director found no reliable evidence to corroborate the applicant’s claim which was just based on his bare assertions and hearsays in particular as to his allegation that the attacks against him were by the AL people or that why they so targeted him given his relatively unimportant position in BNP or that they still have any continuous adverse interest in him after all these years, that in the absence of any evidence of any state involvement in their threats that state protection would be available to the applicant if such threats still persisted, 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 as an able-bodied adult with ample earning abilities and experiences to move safely to other areas away from his home district such as Dhaka.  

7.By a Notice of Further Decision dated 13 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him 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”).

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 22 June 2016, and for which he attended an oral hearing on 4 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board for the detailed analysis set out in paragraphs 42 – 50 found the applicant’s claims incredible, unreliable and otherwise implausible, that it is not persuaded that the risks as claimed even if true still exist after all these years, that state or police protection would be available to him if resorted to, and that reasonable internal relocation alternatives are available for the applicant to move to another area in Bangladesh to avoid or minimize his perceived risks from the AL people.  

10.On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward two grounds for his intended challenge which can be summarized as follows:

(1)  procedural unfairness for the Director to provide to him the hearing bundle only a few days before his appeal hearing before the Board with most of the documents in English therefore giving him insufficient time to prepare for his appeal; and

(2)  unfairness for the Board to rely significantly on source of news not officially recognized or is simply hearsay or outdated leading to groundless speculation that it is safe for him to return to Bangladesh.

11.For his complaint in ground (1) of being given the hearing bundle only shortly before his appeal hearing before the Board with most documents in English thereby giving him insufficient time to prepare for his appeal or to find an interpreter to assist him, the fact is that he still had six days to prepare for his appeal with most of the documents which he should be well familiar with including his own NCF, records of his screening interviews and the decisions of the Director all of which had earlier been already provided to him while he still had legal representation, and that at his appeal hearing he was able to testify and answered questions with the assistance of an interpreter without any difficulty but during which he never raised any complaint about the delay of his hearing bundle or requested for further time for preparation.  I do not find any merits or justification in this ground of the applicant.

12.As for his complaint in ground (2) that the Board had relied on COI not officially recognized or hearsay or outdated, the applicant has failed to provide any particulars or specifics in support of this complaint, and upon careful examination of those COI referred to in paragraphs of the decision of the Director as well as those considered by the Board, I do not find any merits in this complaint of the applicant.

13.Given the fact that his claim was rejected essentially on his credibility for those clear reasons and findings of the Board, any attempts by the applicant to criticize the Board in its use or reliance of COI in its assessment of the situations in Bangladesh is in my judgment both futile and pointless.     

14.In the premises and having proceeded to consider 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 13^th day of July 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