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HCAL 2912/2018
[2021] HKCFI 881
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2912 OF 2018
BETWEEN
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Uddin Mohammed Nazim |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant entered Hong Kong illegally from China on 11/6/2015. He was arrested by the police on 21/6/2015. He lodged the non-refoulement claim in this case on 23/6/2015.
Background
2. The applicant was born on 3/7/1985 in Chittagong, District Lohagara, Bangladesh.[1] He had education for 2 years. He was single. His father died in 2014. His father left a plot of land [2] to him and his brothers. His mother and siblings lived in Bangladesh. He was a factory worker in Dhaka from 2008—2012.
3. His family were members of the Jammat-e-Islami (‘JI’). He joined the JI in 2008 and later became the vice-leader of JI in the village. About 60% of the villagers were members of JI. He helped to settle their problems in the village.
4. About 2008, Hussain Ahmed (Ahmed) who was a leader of the Awami League (AL) in the village, forged some deeds and claimed that his family land belonged to the AL. He heard that the land dispute started during his father’s time. AL members had been causing trouble in those days to his father.
5. One day, about 30 AL members including Ahmed approached his home. His father, elder brothers and him left immediately. His mother and other younger siblings stayed at home. They were not harmed. He returned home after staying with a friend for about 3 days. Since then, he did not know the whereabouts of his father and elder brothers.
6. Some villagers informed him that the AL members had filed a case in court alleging that he and his elder brothers had wrongly occupied the land. He had submitted the title documents to court but there was no ruling yet. No one could farm on the land until the verdict.
7. After he returned home, some villagers told him the AL members planned to come and locate them in the village. He was so scared that he moved to Dhaka immediately. He stayed there for 4 years without any problem. A friend introduced him to work in a factory.
8. While in Dhaka for about 4 years, some AL members located him. He heard they planned to attack him. He obtained a valid passport in October 2012. He then left Dhaka on 16/12/2012 to China without any problem. After he used up his savings, he came to Hong Kong.
9. He last contacted his mother in October 2016. His mother told him that the court case was still pending. The AL members still asked about him.
10. He did not report to the police. The police would not help as they favoured the AL party who was in power. He did not know members of the public could complaint against the police.
11. He had no friend or relatives elsewhere. The AL members were able to locate him in Dhaka. He had no alternatives for relocation.
12. He was in fear that AL members would harm or kill him if he returned to Bangladesh.
The decision of the Director
13. The Director found that there was no substantial ground for believing any real risk of harm from AL members for the following reasons:[3]
a. The applicant claimed to be the vice-leader of JI in his home village. However, his job was limited to serve party members in need. In the 4 years that he was absent from home, he was just an ordinary member. There was no reason that the AL members targeted him and used resources to locate him.
b. The applicant had no physical encounter with the AL members. During the incident when 30 AL members approached the home village, he and his brothers managed to escape without being hurt. Younger siblings and his mother stayed behind safely. He was safe in Dhaka for 4 years. There was no evidence that the AL members had any real intention to harm him or his family.
c. He worked in Dhaka for 4 years. Nothing happened until he claimed that he was located. He left Bangladesh without any problem. His family was still in the home village. This showed that he was not targeted.
d. As for the court case, it seemed that the proceedings were in progress. There was no evidence that any public official was involved. He chose not to report to the police. There was no evidence that the government had condoned, encourage or tolerate the conduct of the AL members.
e. The applicant speculated that the police would not assist as AL was in power. Having considered various COI, the Director acknowledged that the police were reluctant to investigate people connected with the ruling party. There were political interference and human rights violations. However, there were police reform programs to enhance police performance, tackle corruption, improve access to justice and observe human rights. A citizen might complaint against a police officer for failure to provide assistance. The Bangladesh government was capable to protect citizens against corruption, abuse of power and interference by politicians.
f. The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country. The population was about 160 million. Given his age and background, he should be able to relocate to Dhaka or Faridabad.
14. The Director rejected the claim on all grounds on 13/12/2016.[4]
The decision of TCAB
15. The applicant attended a hearing on 6/9/2018 before the TCAB. The adjudicator pointed out the following aspects which indicated that the risk of harm from Ahmed or AL members was low:[5]
a. The land dispute had been going on for some years. It was before the court for quite some time. There was no evidence that it had led to violence in the past or it was the result of political enmity.
b. In relation to the applicant’s involvement in JI, the adjudicator pointed out that the applicant had little knowledge of the Islamist platform of JI. He could not give any detail of his involvement with the party. He did not know the current circumstances of JI and its leaders. The adjudicator found that the applicant had not maintained association with JI.
c. According to Amnesty International, AL government had been severely restricting the activities of JI. It was deregistered as a political party. Members were arbitrarily arrested. The applicant had never indicated that he would subject to this kind of treatment if he returned to Bangladesh. This showed that he was at best a low level member. He would not be at risk of harm.
d. There was no reason that the AL party would take over the land itself. The adjudicator did not accept AL party was behind the land dispute.
e. The applicant had never had any encounter with the AL members. His mother and younger siblings remained at the home village until 2014. The applicant’s family was not harassed by Ahmed or AL members. There was no hostility all along. There was no reason that his younger brother was attacked suddenly in 2017 because of the land. [6]
f. The applicant did not explain why the AL members still wanted to attack him after his stay in Dhaka for 4 years.
g. The applicant claimed during the oral hearing before the TCAB that the police had tried to arrest him on 3 occasions after the land dispute case was filed. This was never mentioned before. He could not explain why he was wanted by the police in a civil case. The adjudicator rejected this as supporting any risk of harm.
h. The adjudicator agreed that there were reasonable options for relocation given that Bangladesh was a large country. The AL supporters and Ahmed would not have the resources to locate him. In fact, he was safe in Dhaka before leaving Bangladesh. It was not unduly harsh for the applicant to relocate to Dhaka, Rajshahi or Khulna.
16. The land dispute did not arise from difference of political opinions. There was no real risk of CIDTP or torture. The adjudicator rejected the applicant’s claim on 6/12/2018.
Judicial review
17. The applicant filed the leave application for judicial review on 19/12/2018. In his affirmation in support, he did not point out any specific error in the decision of the TCAB or the Director.
18. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.
19. The adjudicator had carefully analysed the evidence of the applicant in the oral hearing and the evidence in the appeal bundle. Her findings were logical. I agree with them.
20. In my judgment, there is no error of law or procedure. The decisions of the TCAB is reasonable.
Conclusion
21. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 7th day of April 2021
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(Mike Mak) |
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 7 April 2021
Uddin Mohammed Nazim
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 7 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5618/16/12/265/B704
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2332/16
(Formerly RBCZ 12189/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Gorastan, Noyapara.
[2] About 1,000 square feet.
[3] Decision of the Director dated 13/12/2016, §§14—19.
[4] Decision of the Director dated 13/12/2016, §§20—33.
[5] Decision of the TCAB dated 6/12/2018, §§34—48.
[6] Decision of the TCAB dated 6/12/2018, §28.
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