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

HCAL 994/2017

[2018] HKCFI 1957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 994 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 by 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 31-year-old national of Bangladesh who entered Hong Kong illegally on 11 April 2015 and was arrested by police on 13 April 2015.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim 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”) and by the local police over false charges against him.  He has subsequently been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Raipur, District Lakshmipur, Bangladesh.  In 2011 when he was a student in Comilla Victoria College, he joined the Islami Chhatra Shibir (“ICS”) which was the student wing of the political party Jamaat-e-Islami (“JeL”), and actively attended their meetings and rallies and assisted in their election campaigns.

3.However, the majority of the students were supporters of AL, and RS, the vice president of its student wing who attended the same college would often harass and intimidate fellow students of other political parties to join AL, and one day in early 2013 he approached the applicant and demanded that he quit JeL to join AL, and when the applicant refused, RS became angry and threatened him with dire consequences.

4.One day in about mid-2013 while the applicant was on his way to school, he ran into RS with two other AL members, and when the applicant again rejected his demand to join AL, RS ordered his friends to hit the applicant who was however able to hit back at one of them with a brick and made his escape.

5.On the same evening some policemen came to the applicant’s house and took him back to the station where he was detained overnight on a false charge made against him by RS during which he was hit by a police officer with a baton and was denied any food or water, and it was only in the following morning when his parents paid a bribe to the police officer that the applicant was released.

6.Two days later the police again came to the applicant’s home looking for him on another charge laid against him by RS, but the applicant was able to slip away to hide in his neighbour’s home, and from there he fled to Dhaka to take shelter at his uncle’s place where he stayed for about six months without any incidents, but when he was informed by his parents that the police were still looking for him everywhere, the applicant felt it was no longer safe to remain in Bangladesh, and therefore on 15 December 2013 departed for China where he stayed for one and a half year before sneaking into Hong Kong in April 2015 and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 28 July 2017 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

8.In his decision the Director found no substantial grounds for believing that there will be real risk of the applicant being harmed or killed by RS or other AL people or that he would be arrested or persecuted by the police upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from any of them, that reliable and objective Country of Origin Information (“COI”) show that structured police forces are in place in Bangladesh with on-going reforms that even members of the ruling party are not immune from the rule of law, that the absence of reliable evidence of any official involvement in the threats from RS and his AL people that state protection would be available to the applicant if resorted to, and that COI show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 156 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 and well educated young man to move to other areas away from his home district such as Chittagong or Dhaka where he had stayed before without any incidents and where it would be difficult if not impossible for RS and his people to locate him.

9.On 10 August 2017 the applicant filed his appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), and for which he attended an oral hearing on 9 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the applicant not a credible or reliable witness, and that none of his material assertions that made up the centre piece of his claim that he had been targeted and ill-treated because RS and his people wanted him to leave JeL and to join AL were credible or reliable with serious discrepancies, and concluded that he has failed to show any substantial grounds for believing that if refouled to Bangladesh that there would be a real risk to him under any of the applicable grounds.   

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 failed to appreciate or give proper importance to the presence of state acquiescence of his torture by the local police which should render the state liable to him but which the Director failed to take into account in the consideration of his claim;

(2)     that the Director failed to consider or give sufficient weight in relevant COI which supported the applicant’s claim that the police in Bangladesh would not be able to offer protection to its citizens in the consideration of his claim;

(3)     that the Director failed to properly consider the relevant COI as to the corruption and incompetency of the administration of Bangladesh in the consideration of his claim;

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

(5)     that the adjudicator failed to take into account in the consideration of his claim of the fact that the applicant was being detained in custody with limited means to gather evidence in support of his claim.

12.These are mostly just broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to his case, or what relevant COI that the Director had failed to take into account in his consideration of his claim, or how was the presence of state acquiescence of his torture by the local police relevant to his claim when there is no evidence of any official involvement in the threats allegedly made against him, or in what way that the Director had failed to apply high standard of fairness in the consideration of his claim.  None of these assertions were elaborated or presented with any particulars by the applicant.     

13.This was in fact also recognized by the applicant when he subsequently on 2 May 2018 filed a further supporting affirmation stating in paragraph 10 that “he had not stated grounds clearly” and sought to withdraw his application but subsequently changed his mind after being explained by the Practice Master on the same date that it was not necessary to withdraw his application as long as he has clarified his grounds for seeking relief in his further affirmation, which can be summarized as follows:

(1)     that the hearing bundle for his appeal before the Board was given to him by the Immigration Department only six days before his appeal hearing, and with the majority of the documents in English and without the assistance of interpreter that there was insufficient time for him to prepare for his appeal;

(2)     that although he did answer all the questions with honesty, it was unfair that his credibility was found questionable; and

(3)     that the Board had significantly relied on the source of news which was not officially recognized or was simply hearsay or outdated resulting in its groundless speculations that it would be safe for him to return to his home country.        

14.That last ground put forward by the applicant is plainly and factually incorrect as the adjudicator having rejected his claim on all applicable grounds on credibility did not find it necessary to consider any COI in relation to his safe return to Bangladesh.  As for those COI which the Director did consider in his assessment, again the applicant failed to elaborate with any particulars or specifics as to which COI were unofficially recognized or irrelevant or outdated, and having considered them carefully I do not find any basis or merit in this complaint of the applicant.

15.As for his complaint of being provided with the hearing bundle late before his appeal hearing with most of the documents in English without the assistance of any interpreter thereby giving him in sufficient time to prepare for his appeal, even assuming that it is true that the hearing bundle was indeed provided to him late, and I note that he did not produce any supporting evidence such as the date of the covering letter which accompanied the bundle, the fact is that most of those documents such as his NCF, his screening interview and the Director’s decisions had already been provided to him earlier when he still had legal representation, while his own NCF was clearly prepared with legal assistance on his own instruction, and that he was assisted by a proper interpreter at his appeal hearing during which he never raised any complaint or issue about the bundle, nor did he ask for further time or adjournment to enable him to better prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being provided to him shortly before his appeal to the Board.

16.As for his complaint about the Board’s findings against his credibility, having examined them as set out by the adjudicator in her detailed analysis and reasons in paragraphs 53 – 65 of the decision, I do not find any basis to interfere with her evaluation of the evidence available to her including hearing the applicant in evidence as the primary decision maker.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm in a non-refoulement claim is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision maker in the absence of any legal error being identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17.I should also note that after having adjourned the oral hearing of his leave application on two previous occasions when the applicant failed to attend but subsequently followed up with an explanation that his absence was due to medical reasons, and when he still failed to appear on the third occasion for which he submitted afterwards a letter in Bengali without translation but accompanied by a payment advice issued by the Hospital Authority on the same morning of the court hearing, I find it too much of a coincidence that on the morning of each of the three court hearings that he would have medical emergency and in the absence of any objective evidence that he has any chronic medical problems, I decided that no further oral hearing for his leave application would be justified and that it be dealt with on paper only without further delay.     

18.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.

19.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 31^st 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