Md Kaosar Acon v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 24/2018

[2018] HKCFI 1587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 24 of 2018

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 the Applicant 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 9 February 2014 and was arrested by police on 11 February 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 14 February 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Basira, District Munshiganj, Bangladesh.  After leaving school he worked in the machine manufacturing field and joined the student wing of the Jamaat-e-Islami Party (“JIP”) attending meetings and rallies until 2012 when he left JIP after its members were being suppressed by supporters of the ruling AL party and joined the Bangladesh Nationalist Party (“BNP”).

3.One day in August or September 2012 he and other members of BNP were attacked by supporters of AL with wooden clubs and sticks that he suffered an injury to his right arm.  Several days later the applicant and other BNP members were threatened by AL members that if they did not leave the country they would be harmed or killed.  One day in October 2012 when his neighbors warned him that some AL people were approaching his home with wooden sticks, the applicant ran and took shelter at his cousin’s place in Dhaka before leaving Bangladesh to work in Singapore.

4.In April 2013 when he returned to Bangladesh and moved to Chittagong, one night he was arrested by police for being suspected to be a terrorist, and was released the next day only after his family had hired a lawyer for him, but the applicant felt that he was no longer safe in Bangladesh and therefore departed on 4 July 2013 for China, and from there he subsequently sneaked into Hong Kong in February 2014 and lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 17 November 2015 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 31 December 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 the low intensity and frequency of past ill-treatment from the AL supporters indicative of a small future risk of harm upon the applicant’s return to Bangladesh, that it was not accepted that he left Bangladesh seeking for protection or that his claim is genuinely based on his fear of harm from the AL supporters, that in any event state protection would be available if resorted to, 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 130,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Dhaka or Chittagong where it is unlikely that the AL supporters would be willing or able to target or locate him.     

7.By a Notice of Further Decision dated 14 February 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, for which he filed his appeal on 14 January 2016, and for which he attended an oral hearing on 16 June 2017 before the Board during which he merely stated that he had already submitted whatever needed to be said, that he had no further evidence to give, and that he would go back to Bangladesh once the party in power is removed.  On 3 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found no urgency on his part to leave Bangladesh given the fact that he had been able to live in Dhaka and Chittagong without any incidents from the AL supporters before he left for China and Hong Kong, that state protection would be available to him if resorted to, and that he can move to Dhaka or Chittagong upon his return to Bangladesh where he had stayed before without any incidents from the AL supporters.  

10.On 5 January 2018 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 put forward the following grounds for his intended challenge:

(1)  procedural impropriety in the failure of the Director and the Board to conduct sufficient independent inquiry into or critical analysis of the relevant COI, or to explain or justify why certain COI were preferred over the others, and for cherry-picking COI in arriving at their decisions;

(2)  error/misdirection in law for failing to consider the psychological harm as well as the mental and physical harms suffered by the applicant in the consideration of his claim;

(3)  procedural impropriety for failing to take into account of the concept of extended state acquiescence in the consideration of his claim; and

(4)  irrationality/illegality for failing to give sufficient reasons as to why he would not be at risk of being subjected to torture, CIDTP and/or persecution risks upon his return to Bangladesh.  

11.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  Or what is the relevancy of the concept of state acquiescence to his claim in the absence of any evidence of state involvement, and quite clearly both the Director and the Board did give full reasons and explanations in their decisions for rejecting the applicant’s claim. 

12.Furthermore, both the Director and the adjudicator were in my judgment perfectly entitled to conclude on the facts and evidence available that the applicant had failed to show that it was unsafe and therefore unreasonable for him to relocate to any of the alternative places suggested by the Director and the Board as there was no valid suggestion that it would otherwise be unreasonable or unduly harsh to require him to do so. There is therefore no basis to interfere with the decision of either the Director or the adjudicator under any of the grounds of the applicant.

13.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.

14.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 3^rd day of August 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