Hossain Md Farh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1056/2017

[2018] HKCFI 2202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1056 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 13 January 2014 and was arrested by police on 20 January 2014.  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 supporters of rival political party the Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Uttor Islampur District, Munshiganj, Dhaka, Bangladesh. After leaving school he had not worked but became a supporter of the political party Bangladesh Nationalist Party (“BNP”) participating regularly in their local rallies which frequently led to clashes with the supporters of rival AL and that the applicant had become one of their targets for attack.

3.One day in September 2012 during a cricket match between the supports of the two parties, a fight broke out amongst the supporters during which the applicant was kicked and punched but managed to escape without serious injuries.

4.On another occasion in December 2012 when the applicant was playing cricket with his fellow BNP supporters, they were attacked by a group of AL supporters with cricket bats, and as a result the applicant suffered injuries to his hands which required treatments at the hospital.

5.To avoid further conflicts with the AL supporters and fearful of being targeted by them, the applicant departed Bangladesh on 29 April 2013 for China where he stayed until January 2014 when he sneaked into Hong Kong and subsequently applied for non-refoulement protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 2 September 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”).

7.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no evidence that he had been specifically targeted by the AL supporters in those clashes between rival political parties which were common in Bangladesh, that in the absence of any evidence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and 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 to other area away from his home district such as Chittagong where it would be difficult if not impossible for him to be located.   

8.By a Notice of Further Decision dated 9 June 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, the notice of which he filed on 9 September 2015, and for which he attended an oral hearing on 10 November 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.

10.In its decision the Board found the applicant’s evidence relating to his political activities vague and evasive and found no factual basis for his assertion of being specifically targeted during the clashes with the AL supporters, that on the totality of the evidence it was not persuaded that he has given a truthful account of his claimed activities in BNP or relating to those incidents of attack by the AL people that it appeared that he has invented them for his non-refoulement claim, and that in any event as all the asserted events occurred in his home district in Munshiganj Sadar, it concluded that there is no real risk that he would suffer ill-treatment of any sort if refouled to Bangladesh or at least in other area away from his home district such as in Dhaka.

11.On 12 December 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 the following grounds for his intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  procedural unfairness in the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are the result of procedural errors or unfairness; and

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant.

12.Despite having requested for an oral hearing for his application the Applicant failed to appear at the scheduled hearing on 22 August 2018, for which he subsequently wrote a letter to Court in Bengali without any translation but enclosed a medical certificate issued by the Hospital Authority stating that he on that day attended the Caritas Medical Centre for out-patience consultation for headache for which he was not given any treatment or medication other than a recommendation for sick leave for that day and the following day.

13.Given the nature of his alleged ailment on that day and the fact that he is a relatively young man with no evidence of any chronic or serious health problems, I do not accept that it constitutes any good reason for his failure to attend his oral hearing on 22 August 2018, and as it will be apparent below nor do I find any justification to schedule another oral hearing for his application, as I shall nest proceed to consider the merits his proposed grounds.     

14.These are all just broad and vague assertions of the applicant containing a few key words and phrases but without any particulars or specifics or elaboration 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 Board fetter its discretion in refusing his appeal, or that the adjudicator had acted in a procedurally unfair manner in dealing with his appeal, or that the Board’s decision was unreasonable or irrational in the public law sense.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant at all.

15.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

16.Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decisions should be well familiar to him as they had earlier already been made available when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that during his appeal hearing he never raised any issue with the hearing bundle or requested for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle provided to the applicant for his appeal before the Board.

17.The fact is that as it has been established that the risk of harms from those AL supporters even if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

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 28^th day of September 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