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Re Bellal Hossain

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date26 February 2019
Neutral Citation[2019] HKCA 220
Judgement NumberCACV448/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV448/2018 RE BELLAL HOSSAIN

CACV 448/2018

[2019] HKCA 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 448 OF 2018

(ON APPEAL FROM HCAL 994/2017)

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RE: BELLAL HOSSAIN Applicant

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Before: Hon Barma JA, Au JA and Lisa Wong J in Court
Date of Hearing: 21 February 2019
Date of Judgment: 26 February 2019

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 August 2018, refusing to grant the applicant leave for judicial review.

Background

2. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1957. We shall not repeat the same here.

3. Briefly stated, the applicant is a national of Bangladesh. He entered Hong Kong illegally on 11 April 2015 and was arrested by the police on 13 April 2015. He was then referred to the Immigration Department for investigation. On 2 May 2015, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed, by Russell, vice president of the Chhatra League (student wing of the Bangladesh Awami League (“AL”)) and other AL people as he was a supporter of Jamaat-e-Islam (“JeL”) when he studied in Comilla Victoria College.

4. By a Notice of Decision dated 28 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

5. The applicant then appealed to the Torture Claims Appeal Board (“the Board”). After the hearing on 9 November 2017, the Board dismissed the appeal on 24 November 2017. The Board found at [53] to [59] of its decision that the applicant only made bare assertions with no objective proof and support and his account of events was inconsistent and contradictory that rendered him an incredible and unreliable witness. Further, the applicant premised his case on urgent need to escape from Bangladesh, yet the evidence showed that he “idled” in China for one and a half years without ever seeking to lodge a non-refoulement claim. After he came to Hong Kong, he only filed a non-refoulement claim after he had been arrested by the police. The Board further found at [68] to [74] of its decision that there was no evidence suggesting state acquiescence or state involvement in the alleged ill-treatment suffered by the applicant. The Board concluded that the applicant had failed to show any substantial grounds for believing that there would be a real risk to him under any of the applicable grounds if refouled to Bangladesh.

The Deputy Judge’s decision

6. The intended application for judicial review was in respect of the Director’s and Board’s decisions. The Form 86 filed on 1 December 2017 provided the following grounds:

(1) the Director failed to appreciate or give proper regard to the presence of state acquiescence of the ill-treatment and torture inflicted by the local police on him and the state should be liable to him;

(2) the Director failed to consider or give sufficient weight to relevant country of origin information (“COI”) which supported the applicant’s claim that the police in Bangladesh would not be able to offer protection to its citizens including the applicant;

(3) the Director failed to properly consider the relevant COI as to the corruption and incompetency of the administration of Bangladesh;

(4) the Director failed to apply high standard of fairness in assessing his claim; and

(5) the Board failed to take into account the fact that the applicant was being detained in custody with limited means to gather evidence in support of his claim.

7. On 31 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [19] for his refusal to grant leave:

“12. These are mostly just broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to his case, or what relevant COI that the Director had failed to take into account in his consideration of his claim, or how was the presence of state acquiescence of his torture by the local police relevant to his claim when there is no evidence of any official involvement in the threats allegedly made against him, or in what way that the Director had failed to apply high standard of fairness in the consideration of his claim. None of these assertions were...

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