Faruk Omar v. Torture Claims Appeal Board and Another

HCAL 1119/2018

[2019] HKCFI 2423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1119 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 21 April 2013 and was arrested by police on 24 April 2013.  After he was referred to the Immigration Department for investigation, he raised torture claim later taken as 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 Awami League (“AL”) and/or by the police for taking part in a protest against the government.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Nitira, District Munshiganj, Bangladesh.  As his family were supporters of the political party Jamaat-e-Islami (“JeI”), he joined its student wing Chhatra Shibir in 2009 while still in school regularly attended its meetings and rallies against the ruling AL during which he had experienced conflicts with their supporters.

3.One day in 2010 while he was on his way to the town, the Applicant was intercepted by a group of AL supporters who just punched and kicked him until he lost consciousness and was subsequently taken to the hospital.

4.Two days later upon his discharge from the hospital, the Applicant reported the matter to the police but they refused to take any action, and the Applicant suspected that it was because they were under AL’s influence.

5.In late 2011 the Secretary of JeI was arrested by the police, and as a result the JeI’s members and supporters held a mass protest in Dhaka against his arrest in which the Applicant also participated. However, when the riot police arrived to disperse the protesters,they beat the protesters with their batons and also fired shots at them injuring and killing many of them, but the Applicant managed to escape unharmed and fled from the scene.

6.Upon returning home the Applicant was told by his father that the police had issued a warrant for his arrest for participating in the protest, and so he fled home to take shelter in a friend’s place in another village without incidents, but when he later learnt that the police were looking for him everywhere, he felt that it was no longer safe to remain in Bangladesh, and therefore departed on 17 December 2012 for China, and from there he later sneaked into Hong Kong, and upon his arrest he raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, and for which he completed a Supplementary Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 25 September 2017 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 his absolute or 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 took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his perceived enemies upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that the alleged ill-treatments inflicted on the Applicant by the AL supporters did not attain a minimum level of severity under any of the applicable risks, that there is no reliable evidence that he had been specifically targeted by the AL supporters or that they would still have any interest in him after all these years or that he was being pursued by the police, that in the absence 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 156 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 part of Bangladesh away from his home district in large cities such as Chittagong or Dhaka where it would be difficult if not impossible for those AL supporters to locate him.

9.On 3 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 11 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found multiple material difficulties with the Applicant’s evidence including inconsistencies in his claim of his involvement in JeI and its student wing, or his claimed events of attacks by AL supporters as well as the issue of arrest warrant by police against him that he was considered not a credible witness, and rejected his claim of being a member or supporter of JeI or of any arrest warrant being issued against him by the police, and concluded that he does not face a real risk of proscribed harm from AL supporters or the Bangladesh authorities that his claim for non-refoulement protection failed on all applicable grounds.

11.On 19 June 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 their failure to take into account the concept of extended state acquiescence;

(2) procedural impropriety in their failure to conduct sufficient independent inquiries into relevant COI including failing to conduct a critical analysis of the relevant COI, failing to provide any justification as to why the COI material in support of the conclusion of the Board or the Director should be preferred, and cherry-picking COI material in arriving at their decisions;

(3) error/misdirection in law for their failure to consider the psychological harm which befell on the Applicant as a result of the facts stipulated in his claim;

(4) unreasonableness in their assessment of his claim under BOR 3 risk, BOR 2 risk and persecution risk premised on false logic regarding the intention of his assailants when he actually suffered injuries for which he was hospitalized, and for finding that his claim was a private dispute when it was in fact caused by his political view and for being a member of JeI; and

(5) irrationality in their failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support conclusion of lack of BOR 3 risk.  

12.These are however all just 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 Board had erred in their decisions, or what was the relevancy of the concept of extended state of acquiescence to his claim, or in what way did the adjudicator fail to take into account relevant COI or for cherry-picking or improperly rely on the COI, or how did they fail to give reasons for their assessment of his BOR 3 risk. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I do not find any basis or merits in any of them, or that they are reasonably arguable for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his account of events occurred in Bangladesh that led to his claimed fear of harm if refouled for the thorough and detailed analysis and reasoning as set out in paragraphs 33 – 42 of its decision with the benefit of hearing him in evidence and in answers to questions raised of his claim by the adjudicator during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board and in its decision being clearly identified and elaborated by the Applicant,I do not find any reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact that it has been established by the Director in his decision that the risk of harm from the AL supporters in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh,a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.In the premises and having considered 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.

17.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 22^nd day of November 2019.

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