AL MOMIN CHOWDHURY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1061/2017

[2018] HKCFI 1963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1061 of 2017

 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 30-year-old national of Bangladesh who entered Hong Kong illegally on 15 July 2012 and was arrested by the police on 2 September 2012.  After he was referred to the Immigration Department for investigation, he subsequently lodged a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by Muslims for his views about Islam. He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Village Chilokut, B Baria, Bangladesh.  After finishing secondary school he went on to university in Bonosri in 2007 when he became interested in books about atheism and started to reject the practice of Islam and stopped praying in the Mosques.

3.  One day in July 2007 when he was having an argument with his fellow classmates about Islam, he was attacked by them and was punched in the head that he lost consciousness. Afterwards he was taken to a clinic for treatment, but when he made a complaint to the university administration, he was just told to go away, but when the threats and abuses from his fellow students and some teachers became more frequent and serious, the applicant became concerned for his own safety and decided to leave school in September 2007 to return to his home in B Baria.

4.  However, when words about him abandoning Islam and becoming an atheist spread from the university to his home village, people in his village started to reject him and he therefore spent most of his time hiding at home, during which he became friendly with a professor of his secondary school who was also an atheist and whom he would consult frequently.

5.  One day in November 2009 he was invited by the professor to attended an open forum at a local college during which he gave a speech about Islam and atheism when some of the attendees including the chairman of B Baria Municipality became offended and started to shout abuses at him and to attack him with folded chairs that he got injured in his left knee and had to be taken to the hospital for treatment.

6.  After his discharge from the hospital the applicant made a complaint to the police but was told that they would not help him as he had offended the chairman of B Baria Municipality.  The applicant was then advised by his professor friend that it was not safe for him to remain in his home village and that it could be arranged for him to go work in a book store in Chittagong, and so the applicant set off for Chittagong in December 2009 where he stayed and worked in the book store for the next two years without any incidents.

7.  One day in November 2011 however the applicant had an argument with someone over the religion of Islam in the book store, and afterwards some 10 – 15 strangers came to his store and assaulted him and vandalized his store but he managed to escape without any serious injuries.  After hiding in Laidig for several days, the applicant went to Dhaka and when he decided that it was not safe to remain in Bangladesh, he departed on 31 March 2012 for China, and from there he sneaked into Hong Kong in July 2012 and lodged his torture claim, and after it was rejected by the Immigration Department, he then completed a Supplementary Claim Form for non-refoulement protection on 16 November 2015 with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 9 September 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights (“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”).

9.  In his decision the Director found the absence or low intensity and frequency of past ill-treatments indicative of a small future risk of harm upon the applicant’s return to Bangladesh, that on the facts of his case and after all these years that he is not subjected to any real or continuous risk of being harmed by any particular groups or individuals, that state protection would be available to him if resorted to, and that 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 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move safely to other areas away from his home district such as Dhaka where he had lived before without any incidents.   

10.  By a Notice of Further Decision dated 21 June 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”).

11.  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, which appeal he filed on 19 September 2016, and for which he attended an oral hearing on 7 July 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 7 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted the applicant’s claim to fear harm in Bangladesh because of his religious beliefs, but rejected some of his account of events in Bangladesh such as his attending a forum in the local college when he was only 20 years of age and giving a speech without being invited leading to him being attacked by other attendees including the chairman of the local Municipality as not only implausible but also inconsistent with the evidence earlier submitted by him in support of his claim, or of the circumstances leading to his flight to Chittagong and his further altercation with people there and his eventual departure of Bangladesh.

13.  The adjudicator for the Board went on to consider what risk of harm would be to the applicant upon his return to Bangladesh by asking the three important and relevant questions arise for the applicant: what he would do and how he would express his beliefs should he return to Bangladesh, whether expression of his religious views in that way would lead to a risk of him being harmed, and whether or not the way he would act is in any way influenced by a fear of being harmed.

14.  Whilst it is accepted that claimants for non-refoulement protection are not required and cannot be expected to take steps, reasonably or otherwise, to avoid harm or otherwise live “discreetly” to avoid harm at least in relation to persecutory harm, the adjudicator considered that even in circumstances where a claimant does not raise any issue of modifying his behavior because of a fear of being harmed, where it is likely that he acted discreetly in the past or would do so in the future because he fears suffering harm unless he does so, it is incumbent upon the Board to consider the reasons behind the modification of such behavior, as it is no answer to a claim for non-refoulement protection that a claimant can avoid proscribed harm by hiding the fact that he holds particular beliefs or otherwise act discreetly, as the question must invariably be whether or not there is a real risk of proscribed harm to the claimant upon return to his country.

15.  By applying these questions to the applicant’s case, the adjudicator considered that while the applicant has his own views on the religion of Islam practiced by Muslims, it did not accept that he has such strong views that he would feel the desire to express them more publicly than what his occasional Facebook posts produced by him as evidence which might be seen as not expressing atheist views at all but rather as part of an internal discussion on the proper practice of Islam, and the adjudicator considered that the applicantwould continue to express such measured views through the sharing of other people’s posts thus attracting little attention to himself personally and little risk of being harmed.

16.  Furthermore, the adjudicator considered the applicant’s conduct in Hong Kong as a reliable guide as to how he would conduct himself should he feel absolutely free to do so, and whilst the adjudicator acknowledged that the applicant uses a pseudonym on his Facebook account while in Hong Kong, it did not consider that he does so out of fear of being subjected to proscribed harm, as he admitted as much at the hearing, and that the adjudicator considered that the nature of the material produced by the applicant at the hearing was of such kind as to be unlikely to be characterized so secularist as to draw any adverse attention of groups or individuals who might seek to harm him as they would do to other higher profile secularist bloggers.  The adjudicator therefore did not consider that the applicant would modify his behavior and expression of his secularist beliefs in any meaningful way upon his return to Bangladesh out of a fear of attracting proscribed harm.

17.  Accordingly, and having considered the applicant’s claim both individually and cumulatively including inter alia his non-attendance at prayers, his online communications and the past treatment he has received at university and from his family, and in the light of the findings as above, the adjudicator considered the applicant is not at real risk of any harm above that arising out of heated arguments on the basis of his secularist beliefs upon his return to Bangladesh, and concluded on these basis that the applicant’s case for non-refoulement protection has not made out. 

18.  On 12 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just stating that he wished to apply for judicial review of both the decisions of the director and the Board for rejecting his claim.   

19.  Given the very careful consideration of the applicant’s claim and clear findings by both the Director and the Board in particularly by the adjudicator for the latter as detailed above, and having proceeded to considered their decisions 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.  In my judgment there is simply no basis or justification to interfere with their decisions.

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