Amin Ruhul v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 993/2017

[2018] HKCFI 1602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 993 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 29-year-old national of Bangladesh who entered Hong Kong illegally on 16 June 2014 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 20 June 2014 on the basis that if he returned to Bangladesh he would be harmed or killed by members 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 in Village Lokai Kazir Kandi, Zanjira, Shariatpur, Bangladesh but was raised by her aunt in Dhaka. After leaving school he joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member but with no particular post in the party.

3.One day in late 2011 while he was with some friends they were attacked by some AL members with wooden poles and hockey sticks for being a member of BNP.  Afterwards when the applicant reported the matter to the police, they failed to follow up with any action.

4.Several weeks later the applicant and his friends were again attacked by AL supporters with wooden poles and hockey sticks that the applicant fainted and was taken to the hospital where he was hospitalized for more than a week, and when the police again failed to follow up with any action, the applicant took shelter at his friend’s place in Gazipur for six months until end of 2012 when he decided to move to his parents’ home in Dhaka.

5.However, two weeks later 15 – 20 AL members came to his parents’ home and threatened to kill the applicant for being a BNP member if he remained in Dhaka.  As a result the applicant just hid inside his parents’ house without going out, but one day when he saw AL people approaching his parents’ house with wooden poles and hockey sticks, he fled to his relative’s place in Lokai Kazir Kandi in Shariatpur until early 2014 when he again moved to his friend’s place in Gazipur, but as he still feared for his life he decided to leave Bangladesh and so on 10 June 2014 he left for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 11 January 2016 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 4 May 2016 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”).

7.In his decision the Director found the level of risk of harm from the AL people upon the applicant’s return to Bangladesh as low, 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 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, Chittagong or Gazipur when he had stayed before without any incidents.

8.By a Notice of Further Decision dated 12 January 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”).

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, for which he filed his appeal on 16 May 2016, and for which he attended an oral hearing on 26 January 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found such inconsistencies and changes in the applicant’s evidence at various stages cast serious doubts on the credibility of his evidence and the truth of his claims that he was attacked and harmed by members or supporters of AL because of his membership in BNP, which together with his inability to recall significant events or put them within a time frame indicate his lack of credibility that it found him not to be a credible truthful or reliable witness, and that he has fabricated and concocted his evidence to advance a claim for non-refoulement protection.   

11.On 1 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 it he put forward the following grounds for his intended challenge:

(1)  that the Director had failed to properly consider the presence of state acquiescence in the consideration of the applicant’s claim that he was tortured with the full collusion of the police and the state law enforcement agencies as well as those high up in the political circles thus rendering the state liable for failing to provide reasonable protection for its citizens;

(2)  that the director had failed to take into proper account or consideration of the relevant COI to assess the ineffectiveness of the police in Bangladesh to protect its citizens in the consideration of his claim;

(3)  that the Director had failed to take into account of the corruption and incompetency of the administration and various human rights violations in Bangladesh in the consideration of his claim;

(4)  that the Director had failed to apply high standards of fairness in the consideration of his claim; and

(5)  that the adjudicator had failed to make sufficient enquiry into the applicant’s claim before arriving at its decision in dismissing the appeal.  

12.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 Director or the adjudicator had erred in their  decision, or in what way did the Director fail to take into account of or make sufficient enquiry into relevant COI, or what was the relevancy of state acquiescence to his claim, or in what way was high standard of fairness not applied in the consideration of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.The fact is that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed reasons and analysis set out in paragraphs 37 – 53 of the decision that any attempts to challenge or criticize the reliance of COI in assessing the situations of police corruption or ineffectiveness of state protection in Bangladesh would seem futile or pointless to me, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers.  With the adjudicator’s clear findings as to the core of the applicant’s claim that he was not a member of BNP and at most was just a supporter, that he was never harmed by members or supporters of AL nor was sought out by them and hence would not be at any risk upon his return to Bangladesh, I am unable to find any basis or merits in any of the grounds of the applicant for interfering with the Board’s decision.     

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 24^th 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