BASHU SHING v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1087/2018

[2019] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1087 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Bangladesh who arrived in Hong Kong on 8 October 2006 with permission to remain as a visitor up to 22 October 2006 when he did not depart but instead overstayed until he was arrested by the police on 22 February 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 a member of rival political party Awami League (“AL”) and/or being discriminated against and persecuted by the Muslim majority for being a member of the Hindu minority in Bangladesh.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Bharaura, District Moulvibazar, Bangladesh.  After leaving school he worked in the timber business, and joined the politicalparty Jatiya Party (“JP”) as a low level member mainly helping to set up chairs for the party’s meetings.

3.  In 2004 he participated in the local election for a seat in the Union Council of his home district, and after rival AL representative Bijoy won the election and was elected to be a member of the Council, Bijoy blamed the Applicant for causing him to have to spend a lot of money in bribing for votes due to his popularity in the election, and became hostile towards the Applicant.

4.  About a week after the election in October 2004, one evening when the Applicant was visiting a friend, one of Bijoy’s body guards insulted his friend, and when the Applicanttried to intervene, he was assaulted by the body guard who punched and kicked him violentlythat he was subsequently taken to a local hospital for medical treatment.

5.  After the incident the Applicant’s uncle made a report to the police but was told that Bijoy had in fact already filed a claim with the police against the Applicant for assaulting his body guard, and upon his discharge from the hospital, the Applicant was advised by his uncle to leave town to avoid being arrested by the police, and so the Applicant took shelter at a relative’s home, and when he heard that the police were looking for him, he then fled to Doulatganj in Laxam.

6.  In June 2005 the Applicant heard that Bijoy had put up a reward for information as to his whereabouts, he decided to surrender to the police in Moulove Bazaar where he was detained for interrogation until September 2005 when he was released on bail.

7.  Shortly after his release one evening while he was walking on the street, the Applicant was attacked by two unknown men with wooden sticks with a warning that next time he would be killed.  The Applicant suspected that they were sent by Bijoy to teach him a lesson.

8.  On another occasion when he and his sister were on their way to a worship during a Hindu festival, they were abused and insulted by a group of Muslims.  Fearing that it was no longer safe to remain in Bangladesh, the Applicant therefore departed on 28 September 2005 for China, and from there he eventually travelled to Hong Kong in October 2006 where he overstayed, and upon his arrest by the police he raised a torture claim which was later taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 28 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 12 September 2014 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 Article33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  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 Bijoy or by the Muslims population upon his return to Bangladesh as low due to the absence or low intensity and frequency of past ill-treatment from them, that his fear of harm from Bijoy is based entirelyon his own speculation arising from a private personal dispute with one of his bodyguards,that there is no reliable evidence that he has been specifically targeted for religious persecution by the Muslim population as a member of the Hindu minority who together with other religious minorities are protected by law in Bangladesh, that in the absence of any official involvement that state/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 147,000 squarekilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area away from his home district in large cities such as Dhaka where it would be difficult if not impossible for Bijoy to locate him.

11.  By a Notice of Further Decision dated 9 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an early 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 24September 2014, and for which he attended an oral hearing on 17 May 2017 before the Board during which he declined to give evidence or to answer any questions raised of his claim by the adjudicator for the Board.  On 29 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found the Applicant’s dispute with one of Bijoy’s body guards was an isolated incident and doubted that Bijoy would still have any adverse interest in him after having won the election years ago, that there is no evidence that the Applicant had been targeted by the Muslim population for discrimination or persecution, and that in any event the Applicant can safely relocate to anywhere else in Bangladesh where it would be difficult if not impossible for Bijoy or his men to locate him that his non-refoulement claim failed on all applicable grounds.

14.  On 13 June 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) lack of legal representation for his appeal before the Board which is not fair;

 (2) lack of language assistance in his appeal to the Board; and

 (3) lack of assistance for his claim under BOR 2 risk that he was unable to make any representation for his such claim.

15.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17,Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was given every opportunity to testify and make representation in his appeal hearing before the Board with the assistance of an interpreter but which he elected not to do so.  As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

17.  As for his complaint under Ground (2) of not being provided with language or interpretation assistance for his appeal to the Board, it is clear that he was assisted by an interpreter at his appeal hearing before the Board during which he declined to give any evidence or to answer questions from the adjudicator, and in the absence of any particulars or specifics to demonstrate that the basis of his claim may have been wrongly interpreted orwrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

18.  Regarding his complaint under Ground (3) of not being given legal assistance for his claim under BOR 2 risk, similarly as noted above that there is no absolute right to legal representation at all stages of his proceedings, and as he never raised any issue with his claim under BOR 2 risk during his oral hearing before the Board when he chose not to give any evidence or answer any question from the Board, and up to now he has not provided any additional facts relevant to the assessment of his BOR 2 risk.  Based on existing materials and the case advanced by the Applicant, the assessment of BOR 2 risk would bethe same as the BOR 3 risk, the persecution risk and the torture risk, and there is simply no basis to challenge the Director’s Further Decision, nor do I find any merit in this complaint of the Applicant.

19.  Furthermore, the fact that the Applicant may have been abused by some Muslims in one single incident in his home district does not in my view constitute a sufficient basis to challenge the Board’s decision that he failed to establish a well-found fear of persecution by the Muslim population upon his return to Bangladesh, as 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 harmed or subjected to torture upon his return to his home country: see Re RS CACV 206/2012, 20 August 2013;and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018, 2 August 2018.

20.  The fact that it has been established by both the Director and the Board in their 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 [2013] 1 HKC 526.

21.  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.

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