RATAN GAIN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 27/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 27 OF 2015

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D E C I S I O N

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INTRODUCTION

1.  This is the decision following an ex parte hearing of the application for leave to apply for judicial review.

2.  The applicant is a Bangladesh national who came to, and is now staying in, Hong Kong.  The Form 86 (application for leave to apply for judicial review) does not specify the grounds on which relief is sought (which is a failure to comply with RHC Ord 53 r 3(2)(a)(iii)).

3.  The supporting affirmation, however, makes the following complaints:

(a)  the Director of Immigration (“the Director”) failed to consider the applicant’s mental and physical torture;

(b)  the Director failed to consider the “extended state acquiescence” concept;

(c)  the Director failed to conduct a sufficient enquiry of the country of origin information (“COI”) regarding the effectiveness of any measures introduced to combat corruption of the Bangladesh government officials;

(d)  the Director wrongly concluded that the applicant would face no risk of torture, “cruel, inhuman or degrading treatment or punishment” (“CIDTP”) or persecution if he is returned to Bangladesh.

The same complaints have been made against the Torture Claims Appeal Board (“the Board”) as well.  The Director and the Board are collectively referred to as “the putative respondents” below.

4.  The above grounds have been expanded in the applicant’s skeleton argument.

5.  In short, the Director by a notice of decision (30 May 2014) (“Director’s notice”)informed the applicant that his non-refoulement claim had been rejected.  The Board in a determination dated 29 December 2014 (“Board’s determination”) confirmed the Director’s said decision.

BACKGROUND

6.  According to the applicant’s affirmation:

(1)  he entered Hong Kong illegally by boat (the Director’s notice records that the applicant claimed to have sneaked into Hong Kong on 1 February 2007);

(2)  he lodged his torture claim on 26 December 2007 (the Director’s notice records that the applicant was arrested by the police on 25 September 2007 for illegally remaining in Hong Kong, and the applicant raised a torture claim on 26 December 2007).

7.  Further, according to him:

(a)  the applicant was born to a Hindu family, which is a minority religion in Bangladesh (a predominantly Islamic country);

(b)  after coming to power in 2001, the Bangladesh Nationalist Party (“BNP”) allied with the Jamaat-e-Islami Party (“JIP”);

(c)  later, the BNP-JIP alliances began a large-scale campaign of violence targeting the Hindu community.  There were many human rights violation cases, including rape and assault;

(d)  the government did not take much action to investigate or prosecute the above cases;

(e)  the influence of Muslim (and BNP-JIP) in Bangladesh politics has increased during the last few years.

8.  The events which prompted the applicant to leave Bangladesh and come to Hong Kong were earlier provided by him to the Director. The Director’s notice records that:

(1)  in November 2005, some Muslims went to, and vandalized, the Hindu temple at the applicant’s home town;

(2)  on learning that the elders of the village did not do anything about that, the applicant and some Hindu youths went to the mosque to look for the culprits intending to discuss and settle the matter;

(3)  that unfortunately resulted in a confrontation and a fight, and the mosque being destroyed by stone (probably by the applicant’s group);

(4)  the applicant’s forehead was injured during the fight and he learnt the Muslims were looking for him when he was in hospital for two days;

(5)  after he returned home, some Muslims went there and went after the applicant when he fled.  Two shots were fired during the chase (the applicant believes that the shots were fired towards him);

(6)  the applicant initially stayed in a nearby village for some months, then he moved to Dhaka (the applicant disclosed during the hearing this was about 300 km away from his home village) and stayed there for about seven months before leaving for Hong Kong.

CAT CLAIM

9.  This is based on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (also Part VIIC, Immigration Ordinance (Cap 115)).

10.  In short, the putative respondents concluded that:

(a)  the applicant had not sustained severe pain and suffering.  His forehead injury was caused by a bamboo rod;

(b)  there was no evidence of the involvement of government officials or people in an official capacity.  The dispute was private in nature;

(c)  that the applicant could depart Bangladesh through normal immigration means and channel showed that he was not targeted by the government;

(d)  there is no real risk of torture if the applicant should return to Bangladesh.  That the Muslims reported the dispute to the police showed that they wanted to have the matter resolved through lawful means;

(e)  independent sources showed that reforms had taken place in Bangladesh with indications of positive results (even though there was also evidence of widespread corruptive practice among government officials and the law enforcement agencies);

(f)  he was not harmed or threatened from November 2005 (when he left his home village) to January 2007 (when he left Bangladesh) (a period of about 13 months).  This is despite rumours that some Muslims were looking for him and wanted to kill him;

(g)  in any event, relocation within Bangladesh is reasonably available and would sufficiently result in a safe residence.

CIDTP CLAIM

11.  This is based on Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) (and Art 7, International Covenant on Civil and Political Rights).

12.  The conclusions reached by the putative respondents were in gist:

(1)  para 10(a), (c), (d) and (f) above are repeated.  The assertion that the two shots were intended to kill the applicant is not accepted;

(2)  the claim that the applicant faced a genuine and substantial risk of being subjected to ill-treatment is not accepted.

PERSECUTION CLAIM

13.  This is based on Art 33, 1951 Convention relating to the Status of Refugees.

14.  The putative respondents in essence concluded that:

(a)  there is no evidence to support the applicant’s fear that he would be harmed by some Muslims, or that Hindus were always being tortured in Bangladesh;

(b)  para 10(a), (c), (d) and (f) above are repeated.

Accordingly, the risk of ill-treatment was assessed to be small (or low).

THIS APPLICATION

15.  The following grounds of application have been raised:

(1)  the putative respondents erred/misdirected themselves on the meaning of “state acquiescence”;

(2)  the putative respondents erred/misdirected themselves on “severe physical or mental suffering”;

(3)  there has been illegality/procedural impropriety in that the putative respondents failed to make sufficient inquiry into, or to give adequate reasons for, COI of Bangladesh;

(4)  irrational decision on the putative respondents’ part.

(a)  “State acquiescence” error/misdirection

16.  The complaint here stems from Art 1, CAT:

“[having defined what an act of torture is], when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (see also para 25 below).

17.  Further, para 18, General Comment No 2 (24 January 2008), United Nations Committee Against Torture, provides:

“[State authorities knowingly] fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts [acts of torture]”.

(sometimes called the “concept of extended form”, or “passive”, acquiescence)

18.  The hearing before the Board being inquisitorial in nature, the Board should (at least) consider whether the State has breached the above “duty” of due diligence.

19.  In this connection, the following passages in earlier decisions have been referred to by the applicant:

(a)  TK v Michael C Jenkins HCAL 126/2010 (21 October 2011), para 62;

(b)  AM v Director of Immigration & another HCAL 102/2012 (20 November 2013),para 59 to 66 and 121;

(c)  Re MI CACV 69/2014 (26 September 2014), para 38 and 41;

(d)  Re JKF HCAL 42/2013 (25 April 2014), para 16; CACV 103/2014 (25 November 2014), para 4.

20.  Applying the above to this application, the applicant submits that the putative respondents have only considered “active form of state acquiescence” but failed to consider the “extended (or passive) form”.

21.  In support of this submission, the applicant relies on passages of COI concerning the knowledge of the Bangladesh government about:

“… the political and sectarian violence that exists in Bangladesh but does not act with due diligence to protect victims from it … ” (para 25, applicant’s skeleton argument).

22.  This complaint has no merit.  Of the 16-page or so long Director’s notice (about 7 pages of which were about basis of claim, relevant events and immigration history and the like), some 2 pages have been devoted to COI (the Director noticed that some COI corroborated the applicant’s assertions (widespread corruptive practice among government officials and the law enforcement agencies)) while others show reforms had taken place in Bangladesh with indications of positive results (see also para 10(e) above).

23.  Similarly, of the 11-page or so long Board’s determination (about 7 pages of which were about background, legal principles, the parties’ respective case and the like), some 1-1/2 pages have been devoted to COI, and an approach similar to the Director’s has been adopted by the Board.

24.  The above was one of the circumstances taken into account by the putative respondents.  That they were acutely aware of the applicant’s fear of inadequate protection from the Bangladesh government (and that such fear was not properly grounded) can be shown by the contents of particularly:

(1)  para 15 and 32, Director’s notice;

(2)  para 29 to 31 and 34, Board’s determination.

The complaint that there was a failure to sufficiently enquire into the effectiveness of the reforms is dealt with at para 36 below (the same approach should be adopted here).

(b)  “Severe physical and mental suffering” error/misdirection

25.  This complaint is grounded on the putative respondents’ failure to consider the following: one, the definition of “torture”:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him for an act he … has committed … or intimidating or coercing him … or for any reason based on discrimination of any kind … ” (Art 1, CAT; see also para 16 above);

two, the above definition (especially the part concerning “severe mental suffering”) and the need for the putative respondents to consider it, has been noted in A v Director of Immigration & another HCAL 69/2012 (8 July 2014), para 106.

26.  This complaint is premised on the following parts of the putative respondents’ decisions:

(a)  para 6(m), (s) to (x), Director’s notice;

(b)  para 33, Board’s determination.

Reference is also made to in the A decision, para 105-6, where it was held in gist that Art 1, CAT defines “torture” to mean not only severe actual physical harm but also severe mental suffering. 

27.  Base on the above, the applicant contends that death threats can amount to “severe mental suffering”.  The said “severe mental suffering” of the applicant (arising from the death threat(s)) occurred during the period when (and since) he was staying in the nearby village (and perhaps also when he was staying in Dhaka).

28.  The complaint is again unmeritorious.  The Director has, at para 31, Director’s notice, expressly referred to the “torture” definition prescribed by the equivalent of Art 1, CAT (s 37U(1), Cap 115).  But the Director has rejected the applicant’s factual case (in particular the part regarding the attempt to kill him and the subsequent death threat(s)) as being unreliable: para 14, 15(a) and (c) and 16 and 32, Director’s notice.  The Director also assessed the risk of harm to the applicant when he returns to Bangladesh to be low.

29.  Likewise, the Board has also expressly referred to the “torture” definition: para 8 and 9, Board’s determination.  I pause here to note that the Board’s determination also referred to the need for the applicant to show substantial grounds for believing that he would be subjected to torture if he returns to his home country (see also the court of appeal decision in TK, para 30 to 31).

30.  Having done so, the Board in the Board’s determination concluded that:

(1)  the applicant’s factual account was unreliable (in particular, the applicant’s belief that the two shots were fired with intent to kill him) (para 21 thereof);

(2)  the physical injury was not severe (para 24 thereof);

(3)  there was no real risk of torture upon the applicant’s return to Bangladesh (para 28 to 31 thereof).

In effect, those conclusions would amount to a finding that the applicant lacked “substantial grounds for a belief of torture”.

31.  By reason of the above, the putative respondents cannot properly be faulted for not finding for the applicant in relation to “severe mental suffering”.  Further, to say that they have not considered this aspect would be to allow semantics to prevail over substance.

32.  The applicant’s criticism that the putative respondents “required” him to prove he had been exposed to torture in the past in order to prove future risk of torture, is unwarranted (para 30b, applicant’s skeleton argument).  When read in context, the putative respondents merely took the applicant’s past experience (together with his experience since his dispute with the Muslims) in effect as a factor for assessing the likelihood of risk of harm (para 14, Director’s notice; para 18(o), 31 and 37, Board’s determination).

(c)   Illegality/procedural impropriety

33.  This complains that the putative respondents:

(a)  gave inadequate reasons for the conclusion regarding COI;

(b)  cherry-picked the parts of the COI reports which were against the applicant while ignoring those parts which were in his favour;

(c)  over-stated those parts of the COI reports which they relied upon for determination

Further, the Board failed to conduct sufficient independent inquiry regarding COI, but merely copied the information referred to by the Director.

34.  In relation to para 33(b) above, the applicant specifically refers to the following parts of the UK “Bangladesh Country of Origin Information (COI) Report 2013” (“the UK report”):

(1)  7.01 to 7.02 (Human Rights — Introduction) (essentially an overview of Bangladesh human rights condition);

(2)  8.08 (progress of the police reform programme);

(3)  8.12 to 8.15 (armed forces; DGFI (an intelligence agency); arbitrary arrest and detention of political activists);

(4)  8.16 to 8.20 (arbitrary arrest and detention of political activists facilitated by legislation; torturing for political ends);

(5)  8.21 to 8.25 (extra-judicial killings);

(6)  8.27 (corruption of law enforcement agencies);

(7)  8.30 to 8.32 (security force impunity from misdeeds and the setting up of the national human rights commission);

(8)  11.02 to 11.03 (corruption of the judiciary; prolonged delay of trials);

(9)  11.15 to 11.17 (lack of true judicial independence);

(10)  11.19 to 11.24 (government withdrawal of cases on ground of their being “politically motivated”; legal aid);

(11)  15.07 to 15.11 (said to be 15.07 to 15.15 in the applicant’s skeleton argument) (freedom of assembly and expression; frequent political rallies; repression of political assemblies).

35.  For the reasons given below, this complaint is unjustified:

(a)  judging from the use of phrases such as “[officials] frequently engaged in corrupt practices with impunity”, “victims of corruption and harassment” and “government corruption during the year”, the putative respondents must have been aware of the generally unsatisfactory state of affairs in Bangladesh;

(b)  most of the above parts of the UK report are, for the purpose of determining the applicant’s case, not much more than confirmations of the said general state of affairs;

(c)  it is correctly not suggested that the situation in Bangladesh has become so bad that effectively the whole population should be regarded as justifying non-refoulement status.  Thus, the test that the applicant’s risk of harm must be “personal and present” (TK v Michael C Jenkins [2013] 1 HKC 526, para 28) is still applicable;

(d)  the applicant’s case that Hindu believers have been politically repressed is not supported by the COI reports (and not accepted by the putative respondents).  In short, therefore, any risk of harm against him has to be related to his being a member of a minority religious group;

(e)  the lack of express reference by the putative respondents to the parts now relied upon does not necessarily mean that they have misunderstood the information or that they were biased.  On the contrary, they have demonstrated a sufficient degree of balance in their approach;

(f)  accordingly, the criticisms made in the AM decision (at para 95 and 105 to 106) (unqualified favourable conclusions despite inconsistent information) cannot properly be levied against the putative respondents.

36.  The applicant also criticized the Board for failing to conduct independent inquiry as regards COI.  He has not given at least examples of what he contends the Board should have further enquired into.  As the court of appeal pointed out in the TK decision (at para 19 to 27 thereof), a balanced view has to be taken as regards the notion of “procedural fairness” in this regard (the applicant cannot “simply sit back”).

37.  The complaint summarized at para 33(a) and (c) above has no substance either.  As has been stated in para 9 to 14 (and 22 to 24, 28 to 30 and 35 to 36) above, the putative respondents have considered the applicant’s case based on various matters.  The COI aspect was obviously considered together with, and in the light of the findings they have made in relation to, those other matters.

(d)   Irrational decision

38.  This complaint repeats all of the above complaints.

39.  Because of the conclusions already reached in relation to those complaints, I do not find there to be any merit in this complaint either.

CONCLUSION

40.  The test for determining whether leave to apply should be given is trite (reasonable arguability: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, para 15).

41.  By reason of the matters set out above, none of the complaints raised is reasonably arguable.  Consequently, this application should be and is refused.