NNAJI CHARLES ANAYO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1052/2017

[2018] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1052 of 2017

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 counsel for the Applicant 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 last arrived in Hong Kong on 8 May 2006 with permission to remain as a visitor up to 17 May 2006 when he did not depart and instead overstayed until 9 December 2007 when he was arrested by police for theft and was subsequently charged and convicted. Upon his release and was referred to the Immigration Department he lodged a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by members/supporters of rival political party Bangladesh Nationalist Party (“BNP”), which claim was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Feni, Bangladesh where he received formal education up to university with a bachelor’s degree in commerce.  Whilst he was at university he joined the student wing Chhatra League of the political party Awami League (“AL”) regularly attended their meetings and rallies.

3.  In the 2001 General Election the applicant was given the responsibility of supervising the voting center in his local area during which he caught two BNP supporters of cheating for casting their votes twice which led to a heated quarrel when they uttered threats against him before leaving the center.

4.  About a month later whilst the applicant and two of his friends were on the streets they were attacked by a group of BNP people including the two men caught cheating in the voting center with knives and wooden sticks that the applicant was hit badly on the head and legs with bleeding which required treatment in a hospital.

5.  Afterwards the applicant did not think it would be of any use to report the assault to the police as BNP was then the ruling party, but he fled to Mirersharai of Chittagong to stay away from those BNP people for about a year before moving on to Dhaka in 2003 where he started a stationery supply business to make his living.

6.  One day while he was in the Moghbazar he ran into some of the same BNP people who had assaulted him before, and although they did not attack him on this occasion they did verbally abuse and threaten him that they would give him the same treatment as in 2001. Thereafter the applicant began to fear that he might be attacked or robbed by those BNP people, and decided in 2004 to close down his stationary business.

7.  In 2005 the applicant wanted to start another business, and with financial assistance from his cousin he started to travel to China and Hong Kong to purchase goods for sale in Bangladesh.  However, one night in February 2006 he was robbed and assaulted by the same group of BNP people who hit him with hockey sticks and robbed him of all his goods and money.

8.  After receiving medical treatment in a clinic, the applicant reported the matter to the local police, but as he felt that it was no longer safe for him to remain in Bangladesh, he therefore departed for Hong Kong in May 2006 and subsequently lodged his torture claim, for which he later completed his Torture Claim Form (“TCF”) on 19 December 2013 with legal representation from the Duty Lawyer Service, and upon the subsequent commencement of the Unified Screening Mechanism (“USM”), his claim was taken as a non-refoulement claim for which he also completed a Supplementary Claim Form (“SCF”) and attended screening interviews before the Immigration Department.     

9.  By a Notice of Decision dated 5 February 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”).

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 to the applicant upon his return to as low due to the low intensity and frequency of past ill-treatment from the BNP people, that there is no evidence that he had been specifically targeted by the BNP people for political reasons or that there was any real intention to harm or kill him, that after so many years it is doubtful that they would still have any adverse interest in him, 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 166 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 and highly educated adult with work experience to move to other areas away from his home district in large cities such as Chittagong where it would be difficult if not impossible for those BNP people to locate him.

11.  By a Notice of Further Decision dated 23 November 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”).

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, and for which he attended an oral hearing on 12 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found the basis of the objective fear and perceived fear of the applicant is based on the grudge harboured by that group of BNP people in the 2001 voting incident, but did not accept as a fact that BNP still bears any grudge against the applicant, that given its nature and the time lapse of some sixteen years indicate that the grudge by itself would not likely to give rise to a motivation to seriously harm or kill the applicant upon his return to Bangladesh, and as the past incidents objectively do not lend support to such perceived fear of the applicant, the future risk of such harm to him was therefore assessed to be low, which would be rendered even lower with the availability of internal relocation alternatives as it found that it would not be unreasonable or unduly harsh for the applicant in his prime age and as an able businessman to relocate to large cities such as Dhaka, and concluded that the applicant has failed to establish that he would be at risk of the harm he claims to fear or any harm upon his return to Bangladesh that warrants non-refoulement protection.     

14.  On 12 December 2017 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 merely put forward what seems to me just very broad and vague assertions of his without any particulars or elaborations for his intended challenge, but subsequently upon obtaining legal representation he applied and obtained leave to amend his Form 86 to review only the Board’s decision and on the following three grounds:

(1)  that the adjudicator was unreasonable in making speculative findings with regard to the assessment of risk;

(2)  that the adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor; and

(3)  that the adjudicator made a mistake of fact and/or failed to take into account a relevant factor namely that the applicant’s risk of harm emanates from his political opinion generally.  

15.  Given the Board’s finding of the applicant’s fear of harm which if true was based solely on the grudge of certain BNP supporters harboured against him from that 2001 voting incident, I propose to deal firstly with the last ground of the applicant in which he complains that the adjudicator failed to take into account that “the risk of harm emanates from his political opinion generally”.

16.  In support of this complaint the applicant elaborated in his amended Form 86 [Bundle 1 Tab 12 p 18] as following:

“ 54. Accordingly, the Adjudicator consistently attributes the Applicant’s feared harm to solely to the incident of the 2001 election when in fact his fear emanates from his membership of the AL and the risk of harm at the hands of BNP members (on account of his political opinion) with the 2001 incident merely being the trigger of their enmity toward him.

55. The Board’s summary of the Applicant’s claim limits his risk of harm to the two individuals from the BNP that the Applicant previously encountered and as a ‘grudge’ but fails to address or assess risk of harm from BNP as an opposing political party and the risk of harm to the Applicant due to his activities in and/or support for AL and in opposition to BNP both in the past and potentially, in the future. Indeed, the assessment only appears to contemplate the historical fear based on an incident in 2001, namely ‘His enemies are BNP people who are motivated to harm him or kill him by the grudge caused by his confrontation with the two BNP person accusing them of double voting.’ [§23 of Board’s Decision]

56. It is trite that the assessment of risk must consider future harm and therefore the Board needs to consider not only past incidents, but also the risk of harm occurring in the future due to the Applicant’s real or imputed political opinion and/or his intention to manifest same.

57. The Adjudicator’s failure to properly set out and assess the feared harm arising from his political opinion in support of AL generally was a failure to address a central and material issue in the Applicant’s appeal/petition.”

17.  The first question to ask in respect of this complaint therefore must be: Was there any evidence or even suggestion before the Board, or for that matter before the Director, that the applicant had made any political opinion which might have caused or attracted such risk of harm from the BNP people either before or after the 2001 voting incident, or that he had been so targeted by the BNP people because he was an AL member or supporter?

18.  I shall start with the applicant’s TCF dated 19 December 2013 [Bundle 2 Tab 23 p 74] completed with legal representation from the Duty Lawyer Service, in which he stated his claim as follows:

“ I made a claim under Convention against Torture and other Cruel, Inhuman or Degrading treatment or Punishment and Part VIIC of the Immigration Ordinance, Cap 115 because I am in fear of being killed by people from Bangladesh nationalist Party (‘BNP’) if I return to my home country, Bangladesh.

Background of incident

I joined Student League, which was a part of Awami League (an opposition party at that time), as an ordinary member in 1996. At that time, every college student joined different organizations. As I was also a college student and I though Awami League was doing something good for the people, I joined Student League. I attended meetings, possessions and protests.

BNP people casting false votes

In 2001, there was a national election. My party leader Mr. Monir Hossain instructed me to check the vote centre and lead people to the vote centre. I saw two BNP people voted for more than once. I knew they were from BNP as it was a small area. We could recognize which party each other belonged to. I asked them why they voted again when they had already voted. Then they started a quarrel with me. After that they told me they would see me later in a threatening tone. Then they left.

The 1^st incident: being beaten up by BNP people

After one month, which was still 2001, when I was in Dhaka, I and my two friends Babu and Mamun were walking on the street. Babu was my friend without any political background and Mamun was also a member of Student League. Suddenly, 7 to 8 males from BNP approached us. I had seen 2 to 3 of them in the vote centre working for BNP before. They attacked us without saying a word. One of them used a pistol to shoot towards the sky. Another one used a shaving knife to stab Babu. I and Mamun were beaten up by the others with wooden sticks. I was hit on my back and legs. We managed to run away at the end. The beating lasted for 3 to 4 minutes.

…

BNP winning the election

In 2001, BNP won the election. After winning the election, BNP formed the Government and came to power, then BNP started to oppress and harass people who had been supporting the other party. As I was a member of the opposition party and I had previous hostile relationship with some of the members of BNP, I stayed away from home to hide and avoid harm and threats from the BNP.

Starting my own business and being approached by BNP people in Dhaka

In 2003, I started my stationery supplying business in Dhaka. One day, when I was carrying some stationery in Moghbazar, Dhaka, 3 to 5 BNP people approached me. I knew the names of two of them, Nanna and Forman. They said to me, ‘After a long time you appear again. Get ready yourself! You will be getting the treatment as in 2001.’ I did not reply and just walked away.

I tried to avoid them in Dhaka but I still saw them 3 to 4 times until 2004.  They did not attack me but I always felt like they would attack me and take everything from me as I was always taking some goods and money.  Therefore, in 2004, I stopped my business.”     

19.  The applicant went on to describe how he started his business in Hong Kong and China without any further incidents with the BNP people until 2006 as follows:

“ The 2^nd incident: being robbed and attacked by BNP people

In or about February 2006, after I returned to Bangladesh from Hong Kong, the same group of BNP people (10 to 11 people, including Nanna and Forman) who had attacked me in 2001 found me in Dhaka.  I was travelling on a rickshaw with my goods and money.  It was night time, they were armed with shaving knives and sticks.  They stopped the rickshaw and took away all my belongings.  There was around 4,500 Hong Kong Dollars in my wallet.  Those BNP people used wooden sticks to beat me up on my arms and face.  The beating lasted for about 5 to 6 minutes and they took all my money, goods and belongings.  They threatened me that it would be best for me not to come to that place anymore.  They also said that if they see me again they will kill me.  Then they left the scene.” 

20.  The applicant then concluded in his TCF that on the following day he decided to leave Bangladesh as he felt that his life was in danger, and eventually came to Hong Kong in May 2006 and as noted later lodged his torture claim.

21.  In his SCF dated 26 September 2014 [Bundle 2 Tab 27 p 110] completed again with legal representation upon the commencement of USM, the applicant claimed to have noted “some typing errors and various areas which need clarifications and further explanation”, but I do not find any change or alteration by him in any way as to the basis of his claim of being assaulted by the BNP people as stated in his TCF above.

22.  In his subsequent screening interviews before the Immigration Officer, it is in fact revealing to note how he described as the reason behind the two assault incidents of him by the BNP people in his following answers to the Officer’s questions in the first interview on 19 September 2014 [Bundle 2 Tab 28 pp 115 – 116] as follows:

“ Q31 : In the 1^st incident, the BNP people who attacked you did not say anything. Do you know why they attacked you?

A31 : The reason behind the attack was that on the election day, I had objected to their false voting and on that day, there were some arguments and scuffles between BNP people and myself. They threatened me saying ‘we will see you later’. So they had kept the grudge and that is why they attacked me on the day of the 1^st incident.

Q32 : Were those 2 BNP people who voted more than once amongst the attackers?

A32 : Yes.

…

Q40 : Who were those members of BNP that you had got into hostile relationship with after BNP won the national election in 2001?

A40 : Nanna and Forman.

Q41 : What were their positions in the BNP?

A41 : Nanna was a publicity secretary for the area under Ramna police station and Forman was an ordinary member.

Q42 : What was the hostile relationship referred to?

A42 : Objection to the false voting.

23.  Several months later in his written answer to further questions raised by the Immigration Officer dated 19 January 2015 [Bundle 2 Tab 30 p 126], the applicant referred to the assault by the BNP people in the second assault incident of 2006 as follows:

“ Q3 : While doing stationery business in Dhaka, why did you think that BNP people would attack you and take everything from you?

A3 : Because they had threatened me, they would do similar attack like in 2001.

Q4 : Since 2005, you had been travelling among China, Hong Kong and Bangladesh for business. You even went to India and Nepal for sightseeing in 2005. Were you attacked by BNP people except the robbery case in February 2006?

A4 : First time in 2001. Apart from that, only verbal threats and pushing me.

Q5 : Did you encounter any difficulty with Bangladesh immigration during your travel?

A5 : No.

Q6 : Concerning the 2^nd incident in which you were robbed and attacked by BNP people, did the BNP people tell you why they targeted you?

A6 : It is already referred in the incident of 2001.

Q7 : Do you know why the BNP people were still targeting you after all those years?

A7 : They bear grudge and want to take revenge.

…

Q35 : Your party, Awami League (AL), had won the parliamentary election held in January 2014 and is now ruling Bangladesh. In fact, AL has been being the ruling party since it won the national parliamentary election in 2008. Do you still think that BNP people will harm or kill you if you return to Bangladesh?

A35 :   Yes because my issue is vendetta.  In our area BNP is always majority even if AL is in power.”     

24.  It is abundantly clear from the applicant’s own case as shown above in his TCF, SCF, records of his screening interviews as well as his own evidence that the risk of harm from those BNP people emanates solely from the voting incident in 2001 and had nothing whatever to do with his political opinion generally when there is not a shred of evidence that he had ever expressed any, as the applicant had repeatedly and on various occasions referred to that voting incident in 2001 as a “grudge” of the BNP people had on him and for which they attacked him in the two incidents thereafter, and again using the applicant’s own words, for “vendetta” or “revenge”.

25.  In his analysis of the applicant’s claim the adjudicator set out his findings in his decision as to the cause of the applicant’s fear as follows:

“ 23. (i) BNP Motivated by the Grudge—The Appellant was actively involved in helping with the work of his party AL. The rival party is BNP. The rivalry of these two political parties was longstanding and continuing. Yet nothing remarkable had happened which might have caused the Appellant concern about his personal safety and well-being until after the election in 2001 when he and his companions were assaulted in the street in Dhaka by BNP people. This is the starting point of events and which events have the cumulative effect of causing him serious concern for his personal safety compelling him to leave the country to safe [sic] his life. In his written representation to the Immigration Department dated 10 December 2008, he says simply and categorically that he has to come to Hong Kong to save his life. No detail has been revealed therein about the cause of his fear, or about the identity of those who might want to kill him. In the course of the ensuring screening process of his non-refoulement claim it has become clear he is attributing the root cause of the past incidents he has encountered and his current fear to the election day incident in 2001. His enemies are BNP people who are motivated to harm him or to kill him by the grudge caused by his confrontation with the two BNP persons accusing them of double counting.”

26.  On the evidence available to him as set out above, the adjudicator was in my judgment perfectly entitled to and did correctly make such finding of facts as to the basis of the applicant’s fear, and I do not find any basis at all in the applicant’s complaint that the adjudicator had made any mistake of fact or had failed to take a relevant factor that his risk of harm emanates from his political opinion generally when there is no evidence whatsoever to suggest that the applicant had in fact made any or generally.

27.  Thus brings me to ground (1) in which the applicant complains that the adjudicator was unreasonable in making speculative findings with regard to the assessment of risk when he is said to have speculated as to the intention of the perpetrators and the degree of harm they intended to inflict during their first attack of the applicant and his two friends in 2001 after the voting incident, and that he further speculates as to how the incident could and should have unfolded, suggesting an alternative scenario that would presumably support a conclusion that the applicant’s fear of the BNP was justified, and therefore it was the failure of the incident to conform to the adjudicator’s own expectations of what he saw to reasonably or plausibly support a finding of fear which led to a conclusion that the applicant’s fear was not justified as opposed to any proper assessment of credibility.

28.  Whilst it may have been unnecessary, in light of the evidence of the applicant’s own case that the basis of his fear from the BNP people arose solely from their grudge against him over the voting incident, for the adjudicator to proceed to examine the applicant’s mindset and conduct after the voting incident or the perception of the two BNP persons involved may have on the applicant as a potential threat to their future endeavor in the election campaign, as he did in paragraphs 24 – 25 of his decision in his determination as to how likely the applicant’s fears would materialize, the fact is that the adjudicator was in my judgment entitled to and did correctly assess and conclude, based on the totality of the evidence available, in paragraph 33 when he stated:

“ 33. (iii) Summary—The basis of the objective fear and perceived fear by the Appellant is based on the grudge harboured by BNP. The nature of the grudge and the time lapse of some sixteen years indicates the grudge by itself would not likely at all to give rise to a motivation to harm seriously or to kill the Appellant especially on his return to Bangladesh. The past incidents as analyzed before do not lend support to the fear perceived or objective as claimed by the Appellant. The future risk of harm is therefore assessed to be very low.”

29.  This conclusion was actually corroborated by the applicant’s own evidence as recorded in his TCF about the second assault incident in 2006 when he was robbed by the BNP people and was only beaten on his arms and face with wooden sticks when there was ample opportunity for them to kill him instead if indeed that was their intention, politically motivated or otherwise.  In the premises and for the reasons given I do not find any merit or basis in this complaint of the applicant.

30.  As for ground (2) in which the applicant complains that the adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor to consider and make inquiries into the conditions of Bangladesh when he only referred to one source namely the World Population Statistics Website about the city of Dhaka which it is submitted could not have assisted him in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation as it had no bearing on whether the applicant was at risk of political violence from the BNP.

31.  Given my judgment that the adjudicator was correct in his findings as to the basis of the applicant’s risk of fear of harm from those BNP people as noted above was not motivated politically, I do not see how he can be faulted in his assessment based on that COI that the future risk of harm would be even lower when internal relocation is available and that it is not unreasonable or unduly harsh for the applicant at his prime age with work experience to relocate within Bangladesh to large cities such as Dhaka where he had previously stayed prior to his departure for Hong Kong.  As such there is no merit in this complaint of the applicant either.     

32.  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.

33.  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