BEPARI MASUD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 205/2018

[2019] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 205 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 34-year-old national of Bangladesh who entered Hong Kong illegally on 7 July 2014 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Vodropara, Ariol Bazar, Tongibari, Munshiganj, Bangladesh to a family of supporters of the Bangladesh Nationalist Party (“BNP”).  After leaving school he worked as farmer on his father’s farmland, joined BNP as an ordinary member in 2002, got married with a son, and went to work in Saudi Arabia as a construction worker in 2009 before returning to Bangladesh to run a grocery shop in 2013.

3.  In 2008 AL won the general election and became the ruling party.  One day in early 2009 a group of AL members approached the applicant to ask him to quit his party to join AL, and when he refused they threatened to kill him if he remained with BNP.  After the incident the applicant made a report to the police but no further or follow-up action was taken by them.

4.  As he was concerned for his safety the applicant therefore left Bangladesh in 2009 to work in Saudi Arabia during which he heard from his family in Bangladesh that the AL people had on several occasions come to his home looking for him and on one occasion even assaulted his father.

5.  In 2013 the applicant returned to Bangladesh to run a grocery shop and resumed participating in BNP’s activities including their campaign for the 2014 general election by attending its meetings, possessions and rallies, during which the same group of AL members had on two occasions approached him to again demand that he quit BNP to join AL as they believed that Al would win the election to remain as the ruling party but which were all declined by the applicant.

6.  After AL won the election again in January 2014 there were celebration activities on the streets during which some of their supporters started to harass and intimidate supporters of opposition parties and vandalized shops and markets as well, and the applicant was amongst those who were threatened and beaten by them on the streets. 

7.  A few days later in January 2014 the same group of AL people came to the applicant’s home and assaulted him with wooden clubs and hockey sticks for refusing to join AL that his wrist was fractured and his left shoulder broken, and his father was also injured whilst trying to protect him, and before they left the AL people threatened that if they saw the applicant again in the area they would kill him.

8.  After the assault the applicant was taken to the hospital for treatment, but again the police failed to follow up with any investigation.  After his discharge from the hospital the applicant took shelter at his uncle‘s place in Dhaka, but when the AL people kept looking for him in his home area and when he started to receive threatening phone calls from them, the applicant was advised by his parents that it was no longer safe for him to remain in Bangladesh, and so on 26 June 2014 he departed for China, and from there he subsequently sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 16 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

9.  By a Notice of Decision dated 1 June 2016 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 the Hong Kong Bill of Rights (“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 of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from those AL people to the applicant upon his return to as low due to the low intensity and frequency of past ill-treatments from them, that after all these years there is no reason to expect that the AL people would still have any adverse interest in the applicant as being just an ordinary member of BNP with minor chores or responsibility in the party, that in the absence of 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 168 million people spread across a vast territory of more than 130,000 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 Dhaka where he had previously stayed without incidents and where it would be difficult if not impossible for those AL people to locate him.

11.  By a Notice of Further Decision dated 13 July 2017 the Director again rejected the applicant’s claim after receiving and considering further representation from him 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”).

12.  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, the notice of which he filed on 13 June 2016, and for which he attended an oral hearing on 3 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board upon hearing the applicant in evidence found discrepancies and inconsistencies in his account of the threats and assaults from the AL people and was unconvinced that after all these years that the AL people would still pursue the applicant as just an ordinary BNP member especially after AL had already won the election, that according to reliable COI that there is no sign of AL doing that against BNP supporters and that reforms have been on-going in Bangladesh with positive results as to the effectiveness of police to serve and protect its citizens, and that in any event it is viable for the applicant as an adult with work experience to relocate to other areas within Bangladesh such as Dhaka where he had stayed for more than five months without incidents prior to his departure for Hong Kong.    

14.  On 12 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  procedural impropriety in the adjudicator’s failure to carry out sufficient independent inquiries into the relevant COI including failing to conduct a critical analysis of the relevant COI, failing to provide any justification for preferring certain COI, cherry-picking supporting COI to form the basis of his assessment of the applicant’s claim, and failing to properly assess the evidence of the ruling AL persecuting BNP supporters in the consideration of his claim;

(2)  procedural impropriety in the adjudicator’s failure to materialize his fear in his claim after his father and brother had gone missing in rejecting his credibility;

(3)  irrationality in the adjudicator’s failure to take into account of concept of extended state acquiescence when the ruling party had been persecuting and torturing members of opposition parties; and

(4)  illegality for taking into account of irrelevant considerations including the fact that the applicant was able to leave Bangladesh without incident.  

15.  These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to his claim, or in what way were those considerations taken by the adjudicator irrelevant in the consideration of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, while his claim of the subsequent disappearances of his father and brother was unsupported by any independent or objective evidence.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where  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 being identified by the applicant in the decisions, and that 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 Re Litoun Mounsy [2018] HKCA 537.

17.  Further, the fact that it has been established by both the Director and the Board in their respective decisions 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, 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 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.

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