REDAY KRITTNIA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 892/2017

[2018] HKCFI 932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 892 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 28-year-old national of Bangladesh who had entered Hong Kong illegally and was arrested by the police on 1 June 2012.  After he was referred to the Immigration Department for investigation, he raised his non-refoulement claim on 3 June 2012 with the Department on the basis that if he returned to Bangladesh he would be harmed or killed by a gang of five Muslim men for refusing to pay protection money to them.  He has since been released on recognizance pending determination of his claim.

2.  The applicant was born and raised in Shingher Nandan Village, Munshigonj District, Bangladesh to a Hindu family where his father and one of his brothers still live, and where conflicts between Hindu and Muslim were common.  After leaving school he assisted in his father’s pharmacy shop in the village.  One day in April 2012 five Muslim men came to his father’s pharmacy to demand 500,000 taka as protection money, and when his father refused, they slapped him on the face and threatened to kill the applicant who managed to flee from the scene but the men then started to vandalize the shop before they left. Afterwards the applicant’s father reported the matter to the police but to no avail as the police were not willing to launch any investigation.

3.  On the following day the applicant ran into the same five Muslim men on the street who threatened him again that they would kill him if his father still refused to pay them protection money. The next day the five Muslim men came to the applicant’s home looking for him but the applicant managed to run away from the back of his house, and the men warned his family that when they find him they would kill him.

4.  As a result the applicant’s family advised him to leave Bangladesh for his own safety and so the applicant was arranged by agents to depart Bangladesh on 20 April 2012 for China, and from there he sneaked into Hong Kong on 18 May 2012 where he was later arrested by the police and lodged his non-refoulement claim, and subsequently also disclosed that after he left Bangladesh and as the five Muslim men were unable to locate him, they kidnapped his younger brother for ransom, but when his father still refused to pay them, they released his brother unharmed. 

5.  By a Notice of Decision dated 20 May 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”).

6.  In his decision the Director on the facts of the applicant’s case assessed the risk of real harm from those five men upon his return to Bangladesh as low as they were only after protection money, that they have since not caused any real harm on his family, and in the absence of any reliable evidence of any involvement of the state or police in the actions of these five men, state protection would be available to the applicant, while objective Country of Origin Information (“COI”) show that the government of Bangladesh has taken positive steps and reforms to fight police corruption and to improve their efficiency, and that reasonable internal relocation alternatives are available that it would not be unduly harsh for the applicant as an able-bodied young man with working experience to relocate to area other than his home village and away from any threats from those five men.   

7.  By a Notice of Further Decision dated 4 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit any 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”).

8.  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 30 May 2016, and for which he attended two oral hearings before the Board on 6 and 20 October 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

9.  In its decision the Board agreed with the Director’s assessment that the risk of the applicant being harmed by those five Muslim men as low as they were only after money with no real intention to harm or kill him, and doubted that it was his real reason for leaving Bangladesh, and that state protection and reasonable internal relocation alternatives are available for the applicant’s safe return to Bangladesh, and concluded that his claim fails on all applicable grounds.  

10.  On 16 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 his grounds for his intended challenge which can be summarized as follows:

(1) failure on the part of both the Director and the Board to conduct proper and analytical inquiry into COI or for being selective in their reliance of COI in their assessment of his claim;

(2) failure on their part to make proper observation of the persecution against Hindu in Bangladesh in their consideration of his claim;

(3) failure on their part to make proper observation of the facts of Hindu living in fear and the effectiveness of police protection to them in Bangladesh before deciding that it would be safe for him to return home; and

(4) error and misdirection in law in their assessment that state or police protection would be available to him upon his return to Bangladesh.  

11.  It seems to me that all these grounds relate to the reliance by the Director and the Board on COI in their assessment of the applicant’s claim but which are all just broad and vague statements without any particulars or specifics form the applicant as to how and where they were in error or being selective or failed to make proper inquiry into those information, as it has been clearly held by the Court of Appeal that high standard of fairness does not entitle a claimant to just make the claim and then simply sit back and require the Director or the Board, and in this case for the Court to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at para 47. 

12.  Furthermore, having examined those COI listed and referred to by both the Director and the Board, I am unable to find anything amiss arising from their reliance on such COI in their consideration of the applicant’s claim, and on the facts of the case both the Director and the Board were entitled in my judgment to arrive at their assessment of low risk of harm to the applicant from those five Muslim men who were only after protection money from his father but that no harm has happened to him since the applicant’s departure from Bangladesh, and that they were therefore entitled to question the applicant’s real reason for leaving Bangladesh in the circumstances.  There is therefore no merit in any of these grounds of the applicant.

13.  As correctly found by both the Director and the Board, the applicant’s claim is premised on being threatened by five men for protection money which has nothing to do with race or religions or any conflicts between Hindus and Muslims in general in Bangladesh, hence there is also no basis in grounds (2) – (4) of the applicant either. 

14.  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 standard 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 accordingly I 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