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HCAL 537/2018
[2019] HKCFI 1742
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 537 of 2018
BETWEEN
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Anwar Hossain |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
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 26 December 2007 and was arrested by police on 17 August 2008. After he was referred to the Immigration Department for investigation, he 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 members of rival political party Awami League (“AL”) and its student wing and/or that he would be jailed for life under horrific conditions for a murder charge falsely made against him. He was subsequently released on recognizance pending determination of his claim.
2. The applicant was born and raised in Dhaka Cantonment, Bangladesh to a family of supporters of Bangladesh Nationalist Party (“BNP”), and so when he was in secondary school he joined Chatra Dal, the student wing of BNP as a member. As AL also had its student wing Chatra League in the applicant’s school, there were therefore frequent conflicts and disputes between the student supporters of the student wings of the two rival political parties.
3. One day in November 2004, while the applicant was putting up posters of his party in the school hall, he was approached by some Chatra League members who demanded that he put away the posters, and when he refused they proceeded to attack him until some other students intervened, and before they left they threatened that next time they would kill him.
4. A few days after the incident, the applicant heard about a plot to attack his father by some AL people, but when his father made a report to the police, no investigation was carried out by the police.
5. One day in March 2005, while the applicant was on his way home from school, he was ambushed by a group of Chatra League members who hit him with hockey sticks and wooden clubs that his head was bleeding and his body covered with bruises, and when he was running away from the scene, he heard some gun shots fired from behind, but he was not hit and managed to flee from the scene to seek medical treatment in a clinic.
6. In August 2005 the applicant was elected to be the assistant general secretary of Chatra Dal in his school and was given more responsibility in the party. One day in November 2005 while he was studying in the school library, he was attacked by several Chatra League members that he sustained injuries to his hands and his face for which he had to seek medical treatments in a clinic.
7. In January 2006 the applicant and some of his fellow Chatra Dal members started to suspect that the Chatra League members had engaged in drug trafficking activities in the school, and therefore raised the issue with the school principal and organized rallies and protests against the Chatra League’s illegal activities.
8. One night in May 2006 a group of Chatra League members gathered outside the applicant’s home and threw several grenades at his house that everybody was woken up by the explosions, and when the applicant and his parents heard those men outside making death threats against them, they fled from the backdoor to hide in the neighbouring village and did not return until after the men had left.
9. On another occasion in August 2006 when the applicant and his fellow Chatra Dal members were holding a protest against Chatra League’s illegal activities, they were attacked by the Chatra League members with stones and bricks being thrown at them, and then some gun shots were heard and a student was later found being shot and lying unconscious on the ground. Subsequently the police arrived to disperse the crowd and members of both parties were arrested including the applicant and were taken to the police station for investigation.
10. During his detention at the police station the applicant was beaten by one of the police officers during interrogation, but was eventually released without charge.
11. However, the student who had been shot later died in the hospital, and the Chatra League members made a false report to the police that it was the applicant and his fellow Chatra Dal members who were responsible for the student’s death. As a result the police came looking for the applicant who then fled to his friend’s place in the neighbouring village, and from there he moved to his aunt’s home in Dhaka, and later to move to stay with another aunt in Jessore.
12. As the applicant felt it was not safe to be in Bangladesh, and on his father’s advice he departed on 3 March 2007 for Singapore, but when he was refused entry there, he returned to Bangladesh and remained hiding in Dhaka until 20 September 2007 when he departed for China where he stayed for one month until the expiration of his visiting visa and returned to Bangladesh, but two months later on 23 November 2007 he again departed Bangladesh for China, and from he subsequently sneaked into Hong Kong in December 2007, and after his arrest by the police he raised his torture claim which was later taken as a non-refoulement claim upon commencement of the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form on 22 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
13. During his screening interview the applicant further disclosed that since his departure from Bangladesh, he had heard that AL people had looked for him at his home, and when they could not find him there they then made death threats to his parents, and that in 2015 his parents were assaulted by the AL people that both they later died of their injuries,
14. By a Notice of Decision dated 24 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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”).
15. 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 the Chatra League members to the applicant upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that since these student members had left school there was no reason for them to still have any interest in the applicant after all these years, that there was no reliable evidence that his parents had in fact been killed by the AL people which was based entirely on hearsay information, that it was not accepted that he was being pursued by the police in Bangladesh in the absence of any reliable documentary evidence and the fact that he was able to come and go in his country without any problems, that 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 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 part of Bangladesh away from his home district in other large cities such as Jessore where he had lived before without incidents and where it would be difficult if not impossible for those AL people to locate him.
16. By a Notice of Further Decision dated 19 June 2017 the Director again rejected the applicant’s claim in the absence of any 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”).
17. 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 was filed on 4 December 2015, and for which he attended an oral hearing on 27 November 2017 before the Board with legal representation, during which he gave evidence and answered questions put to him by the adjudicator for the Board, and with submissions made on his behalf by his lawyer. On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
18. In its decision the Board found the disputes between Chatra Dal and Chatra League in the applicant’s school were only local student politics that after all these years of the applicant’s departure from Bangladesh that it is unlikely that there would still be any politically adverse interest in him, that there was no reliable evidence that he was being pursued by the police which if true would only make him a fugitive from the law for which he would not be entitled to non-refoulement protection, and that reasonable internal relocation alternatives would be available to the applicant to safely move to other parts of Bangladesh such as Comilla without undue hardship and where it would be impossible for those student members of Chatra League or the AL people to have the desire or the resources to locate him after all these years.
19. On 3 April 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 adjudicator to conduct sufficient independent inquiries into the relevant COI or to conduct a critical analysis of the information, failing to provide any justification as to why certain COI material which support their decisions should be preferred, for cherry-picking supporting COI to form the basis of their assessments of his claim, failure to properly consider his supporting documents in support of his claim, and failure to obtain proper information about the condition of Bangladesh between 2001 and 2006 when BNP was in power when he was tortured and had false claim made against him;
(2) irrationality in their failure to take into account the concept of extended state acquiescence in assessing his claim;
(3) irrationality in their failure to consider whether an active form of acquiescence that acts of torture and ill-treatments did take place and by whom that they were effected; and
(4) unreasonableness in that their assessment of his claim of torture risk, BOR 2, BOR 3 and persecution risks were premised on false logic regarding the intention of his assailants and on the false basis that his claim was a private dispute rather than on the basis of his political view and membership in BNP.
20. The applicant did not appear at the scheduled oral hearing of his leave application now before me, for which he subsequently submitted a medical certificate from the Tuen Mun Hospital that he had been suffering from a case of diarrhea the night before the hearing, and asked for another oral hearing to be re-scheduled for his application.
21. In considering his request, I noted from the Director’s decision that the applicant from the commencement of the screening process of his claim in July 2014 had caused numerous cancellations and postponements for various relatively minor medical reasons that it had taken more than 16 months for his screening process to be eventually completed before the Immigration Department in November 2015 [see §§5 – 19 of the Director’s decision].
22. In the Director’s decision the applicant was described as an able-bodied adult in his early 30s without any stated chronic health issues. Given the past history of his persistent failure to attend scheduled meetings or appointments for what seem to me relatively minor medical reasons such as back pain, gastroenteritis, and on this occasion diarrhea, it appears suspiciously to me too much of a coincidence that he again failed to attend the scheduled oral hearing of his application now before me due to that condition when he chose to take the much longer journey from his reported address in Tsim Sha Tsui to the Tuen Mun Hospital instead of coming to Court to deal with what he had repeatedly claimed to be life and death issue of his case, and given that much time had already been spent in processing his claim since his arrival in Hong Kong in December 2007, I decided that there was no justification to schedule another oral hearing for the applicant, and proceeded to consider his application in his absence and on paper.
23. The proposed grounds for his intended application 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 adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why was the concept of extended state acquiescence relevant to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any reasonably arguable basis to challenge their decisions, I am unable to see any realistic prospect of success in his intended application.
24. As has been repeatedly emphasized by the Court of Appeal, 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 those 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.
25. Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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.
26. 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.
27. 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.
Dated the 15th day of July 2019.
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(NG Ka-wing)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 15 July 2019
Anwar Hossain
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 July 2019
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 2697/15/12/26/B355
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9002067/17 (RBCZ 1614/08) T5S12
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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