AHAMMED RONY v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1528/2018

[2020] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1528 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Bangladesh who last arrived in Hong Kong on 20 December 2005 with permission to remain as a visitor up to 3 January 2006 when he did not depart and instead overstayed until 28 September 2011 when he surrendered to the Immigration Department and raised a 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 certain local supporters of rival political parties Bangladesh Nationalist Party (“BNP”) and/or Jamaat-e-Islami (“JIP”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kamalar Chala, PS Savar, Dhaka,Bangladesh.  After leaving school, he did not work in any job, and instead on 21 August 2000 he came to Hong Kong as a visitor under another identity, and after he was arrested bypolice for overstaying in Hong Kong, he was repatriated to Bangladesh on 28 July 2001.  

3.  Upon returning to Bangladesh, he joined the youth wing of the political party Awami League (“AL”), and in 2003 became the vice-president of the local branch of the AL youth wing.

4.  One day in December 2004 he organized an AL rally in Savar to protest against theruling party BNP and the government, during which there were violent clashes between the AL supporters and those of BNP and the police, and the Applicant and some of his fellow supporters were attacked with wooden sticks and other weapons and sustained injuries which required medical treatments at the local clinics.

5.  In another AL protest in January 2005 in Savar against BNP’s illegal drug trafficking activities, the Applicant and his fellow AL supporters were again attacked by BNP supporters and the police that he suffered injuries in his head and limbs and was taken to the local clinic for medical treatments.

6.  On 16 April 2005, the Applicant attended another AL protest with his fellow supporters in Savar, during which BNP supporters fired shots and threw grenades at them that the Applicant suffered injuries to his head and body and required medical treatments at the local clinic.

7.  On 21August 2005 the Applicant took part in another AL rally in Savar when he and his fellow AL supporters were attacked by BNP and JIP supporters with grenades that the Applicant suffered injuries to his legs, and when the riot police arrived, he together with many of his fellow AL supporters were arrested and detained in the Savar police station during which he was beaten with batons for three days before he was bailed out by his AL party.

8.  Upon his release the Applicant fled to Chittagong to take shelter at his uncle’s place,but when he was later told that one of his brothers had been killed by BNP supporters, he felt it was no longer safe to remain in Bangladesh, and so on 8 December 2005 he again departed for Hong Kong where he overstayed for the next six years until 28 September 2011when he surrendered to the Immigration Department and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 22 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 6 January 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”).

10.  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 those local supporters of BNP or JIP upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence that he was ever targeted by BNP or JIP during those violent clashes which were common between political rivals in Bangladesh, that AL has since become the ruling party in Bangladesh and in the absence of any 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 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Bangladesh away from his home district in large cities such as Dhaka or Chittagong where it would be difficult if not impossible for those local supporters of rival parties to locate him.

11.  The Applicant then 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 23 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of his alleged attacks by supporters of rival political parties or the police which were also not supported by the relevant COI that they did occur as alleged by him or at all,and that the available COI show that the situation in Bangladesh has changed considerably since 2005 particularly with AL in power since 2008 that there is no reliable or objective evidence that there will be any real risk of harm to the Applicant upon his return to Bangladesh, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 2 August 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 the failure of the Director and the Board to consider the concept of extended state acquiescence in their determination of the Applicant’s claim;

(2) procedural impropriety in their failure to make sufficient inquiry into the COI as to the conditions of the Applicant’s home country and adopted a passive approach in contravention of the high standard of fairness in failing to provide adequate reasons for rejecting his non-refoulement claim;

(3) error/misdirection in law in their failure to consider the physical and mental torture by the BNP members inflicted on the Applicant in the assessment of his claim;

(4) error/misdirection in law in their failure to consider the torture inflicted by the police on the Applicant in the police station in their assessment of his claim;

(5) error/misdirection in law in their failure to consider the mental depression suffered by the Applicant in respect of the death of his brother and his father due to their involvement in AL and targeted by BNP members in their assessment of the Applicant’s claim; and

(6) error/misdirection in law in their failure to properly consider persecution risk which the Applicant feared from the BNP members due to his membership with AL.

14.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as tohow they applied to his case or how the Director or the adjudicator had erred in their decisions,or in what way was the concept of extended state acquiescence relevant to his case, or howdid they fail to make sufficient inquiry into relevant COI in their assessment of the situationsin Bangladesh or to apply high standard of fairness in their assessment of his claim.  None ofthese assertions were elaborated or presented with any particulars or specifics by the Applicant,and as such I do not find any of them reasonably arguable for his intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, the 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 55 of its decision with the benefit of hearing him in his oral testimony and his answers to questions raised of his claim during his appeal hearing before the Board,and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity or elaborations, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm 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.        

18.  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.

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.

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