HOSSAIN MD FARUK v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 947/2017

[2018] HKCFI 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 947 of 2017

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 26-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 7 February 2014.  After he was referred to the Immigration Department for investigation he raised his non-refoulement claim on 9 February 2014 with the Immigration Department on the basis that if he returned to Bangladesh he would be harmed or killed by members and supporters of his rival political party Awami League (“AL”). He has since been released on recognizance pending determination of his claim.  

2.  The applicant was born and raised in Village Bakpur, P.O. Soilodaho, Chitalmari, Bagerhat, Bangladesh where his mother and four sisters still live.  After completing his secondary education he joined Bangladesh Jatiotabadi Chatra Dal (“JCD”) in 2008 which was the student wing of the Bangladesh Nationalist Party (“BNP”) in which he was subsequently elected as a general secretary of JCD responsible for holding meetings and recruiting members and supporters for JCD.

3.  One day in about 2012 while he together with other members were on their way to a meeting they were ambushed by members of AL with sticks, choppers and iron rods and a big fight broke out until the police arrived and everyone fled.  The applicant later learnt that the fight was caused by a false claim of a land dispute made by the AL people against him.  After his discharge from hospital for the injuries he received from the fight, the applicant reported the matter to the police but he was told to go away.

4.  In July 2013 the applicant was approached by the local AL leader to leave BNP and to join his AL party, but when he refused, the AL leader was unhappy and warned him that there would be problems for him.  One day in November 2013 when the applicant heard that the local AL party was planning a rally to harass and attack BNP members and supporters, he fled to a neighboring village and was later told by his neighbours that some AL people had gone to his home armed with hockey sticks and iron rods looking for him and when they could not find him, they broke the door, terrorized his mother and vandalized his home. 

5.  On the following day the applicant fled to his best friend’s place in Dhaka and was advised to leave Bangladesh for his own safety.  He departed on 5 December 2013 for China and from there he sneaked into Hong Kong on 26 December 2013 until he was arrested by the police and subsequently lodged his non-refoulement claim with legal assistance from the Duty Lawyer Service. 

6.  By a Notice of Decision dated 28 April 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 on the facts of the applicant’s own case found no reason why he was targeted by the AL people given his position in BNP and that his fear of harm from the AL people was based primarily on hearsay and speculations, that the low intensity and frequency of past ill-treatment from the AL people is indicative of low future risk to him upon his return to Bangladesh, and in the absence of any reliable evidence of any involvement of the state or police in the alleged threats to the applicant, state protection would be available to him while objective Country of Origin Information (“COI”) show that internal relocation alternatives available for him to return to Bangladesh with a large population of 166 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for him as an able-bodied young man to live in areas away from his home village such as Dhaka and free of any threats from the AL people. 

8.  By a Notice of Further Decision dated 30 June 2017 the Director, upon receiving and considering further representation and information from the applicant that AL won the 2014 election and would remain in power until December 2018 and that those AL members were still looking for him and had threatened his mother that the risk of being harmed or killed by them upon his return to Bangladesh, again rejected his claim on all applicable grounds including right to life under Article 2 of HKBOR (“BOR 2 risk”), as the Director found that these latest information provided by the applicant had already been referred to in his claim as before, and that state protection and internal relocation alternatives would still be available to him upon his return to Bangladesh.  

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, which appeal he filed on 10 May 2016 and for which he attended an oral hearing on 18 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 10 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board expressed similar doubts over the applicant’s alleged threats from the AP people as it was not convinced that he was targeted by them given his relatively low position in BNP, and rejected his account of threats from the AL people as unreliable and based primarily on hearsay and his own speculation, and concluded that he has failed to establish his claim on all applicable grounds.

11.  On 24 November 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 set out the grounds for his intended challenge which can be summarized as follows:

(1) procedural impropriety in their consideration of COI and his documentary evidence including improper or selective reliance thereof, failing to make proper inquiry or analysis of such information, and failing to give proper weight on his supporting documents in their consideration and assessment of his claim;

(2) failure to apply the relevant legal principles in their consideration of his claim;

(3) failure to consider the legal concept of extended state acquiescence in their assessment of his claim; and

(4) failure to properly consider or at all the physical and mental distress suffered by him in the past incidents in their consideration of whether it would be safe for him to return to Bangladesh. 

12.  The first two grounds appear to me just broad and vague statements unsupported by any particulars or specifics from the applicant, as clearly both the Director and the Board did properly apply the relevant principles in their consideration of his claim with high standard of fairness, and upon examination of the COI listed and referred to by both of them in their decisions, I do not find anything amiss arising from their reliance of them in their assessments. There is simply no merit in these grounds of the applicant.  

13.  As for his ground (3) about extended state acquiescence, again in the absence of any particulars or specifics it is not clear what is the basis of this argument of the applicant, and given that his claim was found by both the Director and the Board to have failed essentially on credibility, there is simply no merit in this ground either.

14.  Similarly there is no merit in his last ground either, as both the Director and the Board were entitled to reject the applicant’s claim of threats based on his credibility and on the facts before them, and that their assessments of his safe return to Bangladesh are also well supported by reliable and objective COI, and I am simply unable to find any merit in this ground of the applicant. 

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous consideration 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.

16.  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.

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