Md Monir Hossain v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1068/2017

[2018] HKCFI 1599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1068 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 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 43-year-old national of Bangladesh who last arrived in Hong Kong on 16 October 2006 with permission to remain as a visitor up to 30 October 2006 when he did not depart and instead overstayed until he was arrested by the police on 24 July 2007. After he was referred to the Immigration Department for investigation, he lodged a torture claim on 26 August 2008 on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political parties Bangladesh Nationalist Party (“BNP”) and 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 Muradia, District Patuakhali, Bangladesh.  After leaving school he worked as a cook in a restaurant in Dhaka, and joined the political party Jatiya Party in Dhaka in 1997.  He did not hold any position in the party but regularly attended the party meetings and rallies during which there were frequent clashes with supporters of BNP and AL.

3.One day in 1999 during a strike in Dhaka a fight broke out amongst the supporters of the three parties that police were called in to break up the strike when the applicant suffered a knife wound in his left hand before he managed to escape.  About a month after that incident the applicant was approached by a man on the street who threatened to kill him for being a member of the Jatiya Party.

4.In 2001 the applicant learnt that senior members of Jatiya party started to receive threatening demands from supporters of BNP and AL for money, and by 2005 many of its senior leaders had been driven out of the country by such persistent threats and oppressions from rival parties that the applicant felt he was no longer safe in Bangladesh, and when he heard that police were looking for him in his home village for unknown reason, he left Bangladesh on 18 September 2006 for Hong Kong where he subsequently lodged his torture claim, and later completed his Non-refoulement Claim Form on 5 July 2014 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 28 October 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 applicant’s alleged fear of harms from rival political parties were mostly based on hearsay and speculations with no reliable evidence that he had been targeted by his rival parties, that it is doubtful after all these years that his rival political parties would still have any adverse interest in him, that state protection would be available to him 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 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 as an able-bodied adult with work experience to safely move to other areas away from his home district such as Dhaka where he had resided for more than seven years without any incidents before he left.

7.By a Notice of Further Decision dated 20 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 6 November 2015, and for which he attended an oral hearing on 21 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found on the facts of the applicant’s case that merely being a member of an opposition party would not put him in jeopardy, that any past threats or harms from rival political parties were not personal or specifically directed against him, especially when he had since been away from Bangladesh for more than 10 years during which he had not participated in any political activities, that state protection would be available to him if resorted to, and that internal relocation to other parts of Bangladesh is a safe and viable option to him.  

10.On 13 December 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 put forward the following grounds for his intended challenge:

(1)  procedural impropriety in failing to consider the concept of extended state acquiescence in the consideration of his claim;

(2)  procedural impropriety in failing to conduct sufficient independent inquiries of relevant COI in the consideration of his claim;

(3)  procedural impropriety in failing to conduct critical analysis of relevant COI, for cherry-picking of COI and for failing to properly assessing the dangerous situations of rival political parties in Bangladesh; and

(4)  error/misdirection in law in failing to consider the psychological harm caused to the applicant by supporters of rival political parties in the consideration of his claim.  

11.These are all just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or how is the concept of extended state acquiescence relevant to his claim, or in what way did the Director or the adjudicator fail to conduct independent inquiries or analysis of relevant COI or of being selective or improperly rely on irrelevant COI.  Having examined those COI listed and referred to by both the Director and the Board in their decisions, I do not find any basis or merits in these complaints of the applicant.

12.It is clear that once it has been established by both the Director and the Board that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

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