ALAM TOWHID v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 25/2018

[2018] HKCFI 1959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 25 of 2018

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 53-year-old national of Bangladesh who last arrived in Hong Kong on 14 January 2006 with permission to remain as a visitor up to 28 January 2006 but he did not depart and instead overstayed until 5 October 2007 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 27 December 2007 on the basis that if he returned to Bangladesh he would be harmed or killed by various fractions of Muslims for converting his religion from Islam to Christianity.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in West Dewbhogh, District Narayanganj, Bangladesh to a Muslim family where his parents and siblings still live.  After leaving school he had worked in various jobs including as a general laborer in various places.

3.  Despite strict Muslim upbringing the applicant resisted the Islam religion and often failed to take part in various Muslim rituals or ceremonies for which he was frequently rebuked by his parents.  In May 1994 he started to show interests in Christianity and began to attend Sunday prayers in a Baptist church where he met a Christian girl and fell in love with her, and in May 1995 without informing his family he was baptized in the Baptist Church in Narayanganj City and married the Christian girl on the same day.

4.  After the marriage they continued to live apart from each other until later of the month when the applicant brought his wife home to meet his parents and family.  However his father was furious that the applicant had converted to Christianity and married a Christian for his wife and therefore scolded him loudly, and when the neighbors gathered around and joined in the rebuke of the applicant, some of them started to attacked the applicant and dragged him out of the house and continued to abuse and attack him in the street before driving both the applicant and his wife out of the village with a warning that he would be killed if he dared to return.

5.  After receiving treatments to his injuries in the hospital, the applicant reported the matter to the police, but when they found out that he had converted to Christianity, the policemen in the station also started to abuse him before driving him away.

6.  For the next several years the applicant would be abused and attacked on the streets or at work by different fractions of Muslims whenever he disclosed that he had converted from Islam to Christianity and for having a Christian wife that he had had to move home and change jobs frequently that eventually in 1999 he decided to leave Bangladesh for Hong Kong with a passport of another name where he overstayed until May 2001 when he was repatriated back to Bangladesh where he stayed with his wife in Rupganj District.

7.  One day in June 2001 when the applicant ran into the owner of a dispensary in the market who knew about his religion conversion, the owner shouted to everybody on the street that the applicant was a traitor for abandoning Islam, and people started to hurl abuses at the applicant and proceeded to throw things at him and to attack him with punches and kicks until he was eventually able to flee from the scene and ran home.  After the incident the applicant reported the matter to the police but again they failed to do anything.  The applicant felt it was no longer safe for him to remain in Bangladesh and departed in late 2001 for Hong Kong again with a new passport under his present identity.

8.  For the next several years the applicant would travel between Hong Kong and Bangladesh where he would stay for a few months each time to visit his family during which he did not encounter any incidents by staying most of the time inside his home.  In 2005 when he returned to Bangladesh to stay with his wife who was ill at that time, one evening in December 2005 when he was on his way home after getting some medicine for his wife, he was attacked by some young thugs on the street, and when he reported the matter to the police, he was just told to go away.  As he again feared for his life he therefore left Bangladesh on 13 January 2006 for Hong Kong where he eventually overstayed and raised his torture claim after his refugee application was rejected by the United Nations High Commissioner for Refugees (“UNHCR”).

9.  For the next few years the applicant was charged and convicted for the offences of breaching condition of stay and taking employment without permission and therefore had to serve times in prison, and upon his discharge and whilst waiting repatriation, he lodged a non-refoulement claim for which he completed a Non-refoulement Claim Form (“NCF”) on 16 October 2014 with legal representation from the Duty Lawyer Service.     

10.  By a Notice of Decision dated 28 August 2015 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 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”).

11.  In his decision the Director found the low intensity and frequency of past ill-treatments indicative of no real intension of any group of people to harm the applicant after all these years upon his return to Bangladesh, that in the absence of any evidence of any involvement of the state or police in those threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 169 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district such as Chittagong Hill Tracts and the northern districts with high concentrations of Christians and other ethnic and religious minority groups living peacefully amongst each other.

12.  By a Notice of Further Decision dated 8 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

13.  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, for which he filed his appeal on 9 September 2015, and for which he attended two oral hearings on 29 March 2017 and 18 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found the applicant’s evidence in relation to many of the events occurred in Bangladesh far-fetched and lacking credibility, that his assertion that he volunteered information about his religious conversion on every occasion that he was confronted in Bangladesh is inherently incredible especially when seen in contrast with his assertion that he never mentioned his conversion in Hong Kong until after his arrest, that by his own admission that some of his assertions in his NCF are incorrect, that much of his evidence relates to events and matters of fact are not within his own knowledge or are hearsay, and concluded that his general credibility is damaged to the extent that it was unable to attach any weight to his evidence in relation to the events which he claims to have experienced in Bangladesh in the past, and that it was not persuaded that there is a real risk that the applicant will suffer ill-treatment of any sort if he is refouled to Bangladesh.  

15.  On 5 January 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 affidavit of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety in failing to consider the concept of extended state acquiescence in the consideration of his claim;

(2)  procedural impropriety in failing to conduct sufficient independent inquiry into the relevant COI as to the effectiveness of the authorities in Bangladesh to protect its citizens in the consideration of his claim;

(3)  procedural impropriety in failing to consider the facts that people are being killed in the name of religions in Bangladesh;

(4)  error/misdirection in law in failing to consider the psychological impact of the threats and attacks made against the applicant or the severity of such threats and attacks or to take into account of the evidence of such attacks against him or the numbers of attacks on him or the cumulative effect of inactions by the police in the protection of citizens in Bangladesh; and

(5)  irrationality/illegality in failing to give sufficient reasons as to why he was not found to be at risk under any of the applicable grounds. 

16.  These are all very broad and vague assertions of the applicant 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 decision, or in what way did they fail to take into account of relevant COI in assessing the situations in Bangladesh, or what was the relevancy of state acquiescence to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17.  I should also note that at the oral hearing of his leave application before me, the applicant produced two statements allegedly written by his wife and his son with translations, in which his wife claimed to have received a letter from someone threatening to kill the applicant for converting from Muslim to Christianity, while the son claimed to have been beaten by some youths as his father is a converted Christian.  After the hearing the applicant also submitted what appeared to be three medical or injury reports issued by a hospital in Bangladesh to show injuries sustained by the applicant between 1995 and 1997 being treated in the hospital.  The applicant claims that these documents support his claim of past ill-treatments and that his life is still in danger in Bangladesh.

18.  Putting aside what seems to me the insurmountable issue of authenticity of these documents, there is no reason why those alleged medical reports could not have been disclosed or produced in his earlier process before the Director or the Board when they appeared to be available or obtainable back in 1995 or 1997, or why is the alleged threatening letter referred to in his wife’s statement not produced together with her statement if indeed it does exist.  In any event given the clear findings by both the Director and the Board as to his claim, I do not find any of these documents even if admitted as evidence is capable of advancing the applicant’s case any further.

19.  The fact that his claim was rejected by the Board essentially on his credibility for the detailed reasons and analysis set out in its decision that any attempt to challenge or criticize its use or reliance of COI or its assessment of the general situations in Bangladesh seems to me futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings by the adjudicator as to the applicant’s credibility, I do not see any basis for interfering with the Board’s decision on any of the grounds now advanced by the applicant.

20.  Furthermore, with the well-researched analysis by the Director of COI having established that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording him non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

21.  In the premises and having proceeded to consider 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.

22.  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