BEPARI MANIK v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 98/2018

[2018] HKCFI 2638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 98 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 28 November 2012 and was arrested by police on the following 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 the 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 Village Rikabi Bazar, Nurpur, District Munshiganj, Bangladesh.  After leaving school he worked in the family rice mill, and became a supporter of the Bangladesh Nationalist Party (“BNP”) regularly attended their meetings and rallies but his participation became less after he got married in 2002 and subsequently with two children.

3.  In 2006 he started operating his own business supplying oil on a boat to sand dredgers in the Dhaleswari River area.  However after AL won the election in 2008 and became the ruling party, he began to receive extortion demands from a syndicate of AL supporters when he had to make payments to them for each barrel of oil sold, but in 2012 the AL syndicate tried to take over his business by claiming that since he was a BNP supporter he should not be allowed to carry on business in the area and by raising their extortion demands from him.

4.  One day in late 2012 while he was working on his boat several men from the syndicate came and threatened to drive him away and proceeded to attack him by punching and kicking him, and eventually threw him overboard into the river and sank his boat.

5.  After he was rescued from the river and taken to the clinic for treatment, the applicant made a report to the police, but when he heard from his customers that the police were under the influence of AL and that his complaint would not be properly investigated, the applicant felt it was no longer safe for him to remain in Bangladesh, and therefore departed on 21 November 2012 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 29 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 6 November 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 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from the AL syndicate, that their intention was solely for money and to drive the applicant or his business out of the Dhaleswari River area when he refused to make any further extortion money to them, that in the absence of official involvement 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 169 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 or the Dhaleswari River area to other large cities such as Chittagong where it would be difficult if not impossible for the AL syndicate to locate him.

8.  By a Notice of Further Decision dated 3 July 2017 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”).

9.  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 18 November 2015, and for which he attended an oral hearing on 12 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board upon hearing the applicant in evidence found material discrepancies between what he stated in his NCF and his evidence at the hearing, that he showed little knowledge about the BNP or elections in Bangladesh or his account of being threatened or assaulted by the AL people that it was not persuaded that that there is any real risk of him liable to suffer serious harm or ill-treatment at the hands of those AL people upon his refoulement to Bangladesh, and therefore rejected his claim under all the applicable grounds.

11.  On 22 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 it he put forward the following grounds for his intended challenge:

(1)  that the Board was in breach of procedural fairness in unlawfully fettering its discretion in refusing his appeal on the ground that they did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness;

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  that Board failed to make appropriate arrangements in relation to the hearing bundle;

(6)  that both the Director and the adjudicator misdirected on the law in failing to consider and assess his claim under Article 2, 3 of HKBOR and torture claim under CIDTP;

(7)  that the Director and the adjudicator failed to carry out sufficient research and inquiry to the relevant COI or relied on sources of news not officially recognized or was hearsay;

(8)  that the Director and the adjudicator failed to evaluate and make finding of facts as to whether there exists in Bangladesh consistent patterns of mass violation of human rights or the whether state protection exist in Bangladesh; and

(9)  that the Director and the adjudicator had cherry picked facts and failed to take into account or consideration of relevant COI in arriving at their decisions which were unreasonable.  

12.  The applicant also requested an oral hearing for his application but failed to appear at the scheduled hearing on 30 August 2018 for which he later wrote to explain that he did not receive the notice of hearing from the Court due to his change of address around the same time, but when he again failed to appear at the re-scheduled hearing on 3 October 2018 with yet another excuse of not receiving the notice from the Court despite the fact that it was sent by registered post to his new address but was returned marked “Unclaimed”, I decided to proceed with his application in his absence.  I now turn to consider the proposed grounds for his application.

13.  These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but 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 the decision, or in what way did they fetter their discretions or that their decisions were procedurally unfair or unreasonable, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.  The only other complaint which the applicant appeared to have made with any elaboration was about the arrangements of the hearing bundle being provided to him for his appeal hearing before the Board either being late and/or that the documents were in English without interpretation and thereby given him insufficient time to prepare for his appeal.

15.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

16.  As for his complaint about the Director and the Board failing to make finding as to whether mass violation of human rights exists in Bangladesh, it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or harm upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461.  Given the nature of the alleged threats to the applicant, I do not find any basis in this complaint of his either.

17.  The fact is that his claim was rejected by the Board on his credibility when the adjudicator had had the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 22 – 61 of his decision, to which he was in my judgment entitled based on the evidence available to him and in the absence of any errors being identified by the applicant, as has been repeatedly emphasized by the Court of Appeal that 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 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Nupur Mst [2018] HKCA 524. 

18.  Further, as it has also 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  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.

20.  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