HCAL7/2017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAL LIST No. 7 of 2017
BETWEEN
Mr. Joydul Miah Applicant
And
Torture Claims Appeal Board Putative Respondent
And
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 the Honourable Mr. Justice Li :
Leave to apply for Judicial Review refused.
Observations for the Applicant:
1. The applicant is from Bahadurpur Chargas, Kasba, B.Baria, Bangladesh. He was born on 1 January 1974. He received education for 14 years. He had a Bachelor’s Degree in Arts. He was single. He helped in his father’s store in Dhaka for 4 years until 2005. The applicant and his father were members of the Awami League (‘AL’).
2. He was a college student from 1999—2000. He used to be the vice president of the student council at college for 2 years. This group affiliated with AL.
3. He feared that he would be killed by members of the Bangladesh National Party (BNP) if returned to Bangladesh as he was a member of AL.
4. The applicant entered Hong Kong on 9 September 2005 on a valid passport. He left on 21 September 2005.
5. He came to Hong Kong again on 23 September 2005 and departed for China on 5 October 2005.
6. He returned to Hong Kong again on 8 October 2005. He overstayed in Hong Kong after expiry of his visa since 11 October 2005.
7. He applied for refugee status with UNHCR in 2006. He did not follow up the application.
8. He was arrested by the police on 13 December 2007. He lodged his torture claim on 1 January 2008. He was released on recognisance since 12 January 2008.
Grounds of the application
9. The applicant relied on the following background to support his claim:
a. He and other AL members were assaulted three times by BHP members. He suffered injuries which required treatment in hospital. He did not report to the police although other AL members did. He did not know the result. He never sought assistance from any other authorities.
b. Before he left Bangladesh in 2005, he was framed up by the BNP members leading to his arrest by the police. He was detained but was eventually granted bail. However, he chose to jump bail. He never complained to the court about the frame up despite he was represented.
c. During one of the detention in B. Baria District Jail, some people of the Rapid Action Battalion and BNP members visited him in the cell. They threatened him to leave AL and join BNP. He refused but nothing eventful happened. He was released on bail.
d. He stayed in Tonki after recovering from the injuries in the second assault. He also slipped into India and stayed there for 6 months. He also slipped into Nepal with his friends. After he went back to Bangladesh, he stayed in Mdpur and Tonki hiding from BNP members. He would slip back to India if there was risk of being located. He was safe in India.
e. His father told him that his elder brother was arrested by the police. He did not know the details.
f. Although AL won the last election, there was allegation of foul play in the election. There was demand for a new election. If AL lost again, he would face the same risk from the BNP as before.
g. BNP members were still targeting AL affiliates. He might be the target.
h. He did not think the police could protect him. It was not safe in Bangladesh.
i. He had travelled to India through proper channel with a valid passport in April and July 2005.
10. The Director of Immigration rejected his claim on 30 January 2015.
The decision of the Adjudicator
11. On 19 December 2016, the Adjudicator rejected the applicant’s appeal on all applicable grounds. The Adjudicator found the applicant not credible. He rejected the applicant’s story. The main reasons are as follows:
a. The applicant was vague in recalling even the approximate date of the incidents of assault and arrest. The content of his complaint was equally vague. He did not remember what were the false accusations against him.
b. In relation to the several attacks by the members of BNP, the applicant did not know the result of police investigation despite AL members had reported to the police. He did not follow up.
c. The applicant was represented by a lawyer. However, he had never complained to the court about the false accusations against him. Instead, he chose to jump bail. In fact, he failed to give any detail about the alleged false accusations.
d. The applicant was safe in India and Nepal for at least 6 months. He never thought of seeking help there.
e. The applicant was an ordinary supporter of AL. He was never an official. There was no reason the BNP would target him all over Bangladesh as claimed.
f. The applicant had delayed for more than 2 years before filing his claim in January 2008. This raise doubt as to the veracity of his claim.
12. In addition, the Adjudicator was not persuaded that the applicant was at risk of torture, BOR 3 or persecution if returned to Bangladesh. The Adjudicator had considered various COI, he concluded that the Bangladesh police had taken action to control the activities of BNP and AL. The courts and government officials had been impartial in discharging their duties. There was no evidence that the police were dictated by politicians. There was legal aid service in Bangladesh. The Adjudicator also pointed out that there were big cities which could be a reasonable choice of relocation for the applicant.
Judicial Review
13. During the hearing held on 17 August 2017, the applicant indicated that he had further documents to submit. I allowed him to file the documents as soon as possible.
14. The applicant submitted one page of document purportedly signed by Mr. AL-Mamun Sarker who was allegedly the secretary of AL. The document was dated 22 August 2017.
15. Mr. Sarker wrote in the document, “He (the applicant) was the Vice Chairman of Chargas N.I. Bhuiyan Degree College Chatra League student wing of Bangladesh Awami League. He was honest and active worker. He has been maintaining all political work by carefully of his party …They have been reaching him all over Bangladesh. Wherever they find him will be arrested and taking remand they will torture him inhuman manner …” There was no detail about the applicant’s involvement since he left college after 2000. There was no detail of the applicant’s role in AL. There was no clue why the applicant was so targeted. In fact, the applicant agreed that he was only a supporter of AL before he left Bangladesh in 2005.
16. In my view, the content of the document is so vague that it cannot add credence to his story.
Conclusion
17. Given the above analysis, I agree with the findings of the Adjudicator. The story of the applicant was not credible. I do not find any error in law or in procedure. There is no public law ground in this application.
18. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 22nd day of January 2018
(Benjamin Chan)(Mr)
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:
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);
Sent/Handed to the Applicant/ the Applicant’s solicitors on 22-1-2018
Mr. Joydul Miah
Sent/Handed 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 22-1-2018
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
Applicant’s ref. no:
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)).
Form CALL-1