BEPARY SHAHEALOM v. BETTY KWAN, ESQ

HCAL 62/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 62 OF 2017

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J U D G M E N T

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1.  The applicant was arrested on 29 December 2013 claiming to have only just arrived in Hong Kong that same day illegally. A non‑refoulement claim was lodged on 1 January 2014 the applicant was released on recognizance on 20 January 2014.

2.  The basis of the applicant’s claim was that if returned to Bangladesh, he being an active member of Bangladesh Nationalist Party (“BNP”) would be harmed and killed by people from the Awami League (“AL”) because he refused to leave the BNP and join the AL.  Those people included an Abu Kalam Rali and Abul Bepary.  In addition, the Bangladeshi government targeted him for that same refusal to switch allegiance from the BNP.

3.  The Director of Immigration (“the Director”) rejected the applicant’s claim on 26 January 2016.  By a Notice of Further Decision dated 23 December 2016 the Director found the applicant had also failed to establish a personal and real risk that his rights under Article 2 of the Hong Kong Bill of Rights (“BOR 2”) would be violated were he to return to Bangladesh.

4.  His appeal, a determination of a petition, involved a rehearing of the matter previously decided by the Director which was dismissed on 16 February 2017.  He filed an application for leave for judicial review on 3 March 2017.  This court fixed the hearing for 18 July 2017 the applicant appeared in person.

5.  The applicant had applied for legal aid to apply for leave to judicial review which was refused on 18 May 2017.  The applicant has appealed that decision and it is set down to be heard on 19 October 2017.  The applicant requested an adjournment of this hearing to await that decision. I refused to adjourn the hearing date.  In my view, on the papers, the merits of this application are lacking and there is no reasonable arguable claim with a realistic prospect of success.  That opinion was confirmed having heard the applicant in person.  I saw no reason to delay this matter any further to await the result of that appeal against the Director of Legal Aid.

Background

6.  The applicant was born on 3 May 1977 and brought up in Shariatapur, Bangladesh.  He is now 40 years old.  He is married with three children.  His family, six siblings and parents all live in Bangladesh.  He only received four years of primary education and has been a farmer on land owned by his family for about 21 years from 1992 to 2013 in Bangladesh.  He follows the Islamic religion.

7.  In 2006 he joined the BNP, the ruling party at the time.  He was an active member but held no post but he helped during the election period with the campaigning and promotion.  This was done voluntarily and without pay.  The BNP advocated an Islamic state.  However, the opposing party, AL came into power amid controversy and allegations of vote rigging.  The applicant had never considered joining this ideologically opposed party.

8.  In 2013 the BNP fought for a caretaker government to be installed pending the elections of 2014.  There were allegations of corruption and mismanagement of funds against the AL.  At about this time, members of that party started to threaten BNP members.

9.  There were many incidents according to the applicant that led him to ultimately leave home and then Bangladesh.  I will summarise these. The first incident involved a confrontation with a group of AL members including Abu Kalam Rali and Abul Bepary.  The first man was a farmer and the second the equivalent to a Mayor of the AL party.  The applicant said this man was powerful and controlled the police as well.  Men who accompanied him were the equivalent of thugs or gangsters.  On this occasion the applicant was told to join AL if he wanted to continue to live in the village.  He was shown guns carried by these men in a threatening manner.  The applicant refused and was threatened.  He managed to get away from the group without any physical contact.

10.  The applicant reported this to the police the next day in a nearby town but the officer told him he could not register a complaint against a member of the ruling party.  He did not try to complain anywhere else.

11.  Not long after, the applicant applied for a visa to India and left home as he felt his life was in danger.  He stayed at a guesthouse in Benapole in India but the guesthouse owner kicked him out after one day because he did not welcome refugees.  On 2 June 2013 the applicant then travelled home after only spending one day away.  He didn’t try to leave again as he felt the Indian border was not tightly guarded and the AL could find him in India and kill him.

12.  Not long after, he decided to go to Dakar but before that several incidents took place.  The second incident took place at the end of July 2013, when five to six people came to the applicant’s home including Abu Kalim Rali and Abul Bepary. Upon seeing the group, the applicant ran away through the back door of his home.  He returned much later that same day to find his door broken and his home ransacked.  His family were not hurt and he tried to report this incident to the police but was again told that was not possible.

13.  The third incident was two to three weeks later when the same men came in a group to his home and again the applicant fled through the back door.  Many hours later his wife called to say the men had left and it was safe for him to come home.

14.  The fourth incident was in November 2013, the same men came to his home and again the applicant fled through his back door.  Many hours later his wife call to say the men had left and it was safe to come home.

15.  Two days after this latest incident was the fifth incident when the applicant met Abul Bepary in a market.  They spoke and the applicant was told they had been looking for him.  The applicant said nothing in reply.  That night, his daughter told him that she had overheard seven to eight people talking in a group near her school.  She had heard his name mentioned and then heard them say they would attack the applicant that night in his home.  She recognised Abul Bepary.  Upon hearing this the applicant immediately left for Dhaka some five hours away to stay with his eldest brother.  Later, his family confirmed men had come to their home that night but left without harming them.

16.  The applicant stayed in Dhaka for about 20 days with his brother without incident or detection before leaving Bangladesh on 22 November 2013.  He flew to China without any delay or incident at immigration.  He arrived in Hong Kong illegally just over one month later.

17.  In 2015 the applicant’s wife told him that many BNP members were being arrested, targeted, tortured and beaten badly.  The same two men would still periodically come to the applicant’s home with others looking for him.  The applicant feared for his life and safety if he returned.  He was fearful of being tortured, ill‑treated or persecuted by those two named men or the government itself.  He is sure the authorities will not protect him if he returned.  He is sure he would be under threat anywhere in Bangladesh.

The decision of the Director of Immigration

18.  According to the applicant’s own claim, he was at most only verbally threatened; he was never assaulted nor did he did suffer any bodily harm.  The Director found, taking into account, all the relevant circumstances of his claim the level of risk of harm he would face from a group of AL people was assessed to be low.  The absence of ill‑treatment was indicative of a low future risk of harm upon the applicant’s return to Bangladesh.

19.  There were no grounds to find the applicant would be subject to a real risk of harm from either named men or their associates.  This was especially so when during the incidents when people came to his home he was able to flee his home successfully without any harm and return within the same day.  The fact he returned home suggested the level of risk of harm was very slim.

20.  The dispute arose from the applicant refusing to quit BNP and join AL.  The applicant held no post nor played any significant role in the BNP.  The Director did not accept he was targeted by the AL political party itself.  There was no evidence that the conduct of the two named men and their associates was instigated or connected with the Bangladeshi government.

21.  The Director found nothing to suggest after the applicant went to Dakar in November 2013 the named men escalated further action to hunt for the applicant.  He remained in Dakar for several weeks without incident. There was no evidence to suggest the named men or the AL political party were trying to find him throughout the country.  Once in Dakar he was not in imminent danger nor needed to leave Bangladesh urgently.  This supported the finding the applicant was not subject to a real risk of harm from them.

22.  The applicant claimed the police would not accept his complaint but that is confined to an individual police officer of a specific police station who did not perform his duties in a proper manner.  This does not go far enough to represent the stance of the Bangladesh police force as a whole.  The applicant felt helpless and a lack of protection from the police but did not report it to any other station.  Nor did he make a complaint against the police.  The Director found insufficient material evidence to support the applicant’s claim the authorities concerned were unwilling to take up the complaint and investigate.

23.  The Director found the information from the applicant’s wife that in 2015 members of the BNP party were targeted, arrested and tortured to be hearsay information.  Although hearsay information in itself is not inadmissible, here the Director found this hearsay could not be taken as truth of the matters being alleged.

24.  The Director assessed on all applicable grounds the applicant’s claim and found the non‑refoulement claim was not substantiated.  The assessment was thorough and he found the level of risk of harm from the AL members mentioned low.  Relevant and up-to-date objective COI material was examined and it was found the availability of state protection further lowered or negated the level of risk.

25.  In any event, internal relocation was found to be available to and a viable option for the applicant without undue hardship.  In particular Dakar where his elder brother lives and where he stayed for 20 days before flying to China.  There was no evidence produced that the whole AL political party was targeting or indeed looking for the applicant throughout the country.

26.  The Director found the claim under BOR 3 failed.  The applicant sustained no injuries and did not satisfy the minimum level of severity requirement.  There was no genuine and substantial risk of future ill‑treatment.

27.  It was assessed the applicant’s case did not warrant non‑refoulement protection on the grounds of persecution risk.  Even if his claimed fear of a group of AL people were true, when coupled with the availability of state protection as well as a viable option of internal relocation the likelihood he would be at risk of persecution and fear of ill‑treatment from the two named men and some associates was slim.  The Director did not accept the applicant’s fear was well‑founded.

28.  Lastly, having found no evidence the threats represented the stance of the whole AL political party or the Bangladeshi government the Director found based on the applicant’s assertions those threats and a perceived future risk did not amount to torture as defined under the Immigration Ordinance.  In the absence of past ill‑treatment, it was not accepted the applicant had ever been inflicted with severe pain or suffering.  The torture claim under the immigration ordinance also failed.

29.  Subsequently the Director found in a Notice of Further Decision that his previous findings reconsidered in relation to the “right to life” under Article 2 of the HKBOR ( BOR2 risk) meant the applicant also failed in his BOR2 risk claim.

The decision of the TCAB Adjudicator

30.  The applicant’s appeal/petition was heard on 24 January 2017.  In that hearing the applicant elected to give evidence and answer questions.  The applicant was asked questions about the BNP party and his involvement with it.  He could not name the year when the BNP became the ruling party.  He could not name the year he referred to as the election period.  The board tried to assist the applicant and jog his memory by asking about the caretaker government.  In Bangladesh a caretaker government had been in place in every election since 1990 and was provided for in the constitution, however, the applicant told the board a caretaker government took control because conflicts between parties had created a bad situation in the country.

31.  His answers were confused and according to the board at times long, rambling and incoherent.  He could not provide details of the BNP’s electioneering work and his involvement. The applicant could not provide further details of the malpractice accusations he aimed at the AL party.  The applicant could not be more specific as to the dates when the five incidents occurred except for the first incident.

32.  The adjudicator clearly reconsidered the background and all the evidence adduced.  She rejected the claim for the following reasons:

(1)   The applicant only made bare assertions and provided no objective proof of his assertions.  Nonetheless the adjudicator did bear in mind the COI material.

(2)   Like the Director, the adjudicator found no evidence the two named men and their associates were acting on behalf of or on the instructions of the AL party.  There was no evidence the government of Bangladesh had given instructions to this group of people to target and/or persecute the applicant.  It was pure conjecture and speculation the government would target and harm the applicant, a farmer from a rural area in Bangladesh.

(3)   The adjudicator took judicial notice that in 2013 Bangladesh was consumed by political violence.  There were clashes between the BNP and the AL in their policies.  In spite of this there was nothing to support the fear he would be killed unless he joined the AL.  There was no evidence the AL led government or the caretaker government was complicit in his alleged persecution.

(4)   The adjudicator could make no finding of fact that supported the claim the applicant’s fear was well-founded and genuine.  This was because the applicant did not adduce any credible evidence to show why he would be killed or harmed.  There was no evidence the AL party wanted to prevent him from participating in activities especially when he could provide no detail of his participation so significant it would have drawn their attention to him.

(5)   The board rejected applicant’s claim that Abul Bepary, an allegedly powerful man who controlled the police and was holding a position equivalent to that of a Mayor would target a farmer who was not a significant member or participant of the BNP party.

(6)   There was a finding there was no reliable evidence that the government and/or the state and/or any other authority in Bangladesh knew of or acquiesced to the alleged ill-treatment of the applicant. The allegation a police officer refused to help him even if true can be regarded as a rogue official not representative of the authorities.

(7)   There was no evidence to show that the state or government was unwilling or unable to afford protection to the applicant if he were to be refouled Bangladesh.  There was no evidence the state or government of Bangladesh was unwilling to help the appellant for a Convention reason.

(8)   There was also no evidence to show the applicant had suffered physical and/or mental suffering of the requisite severity.  In particular, no evidence that the alleged perpetrators ill-treated the applicant with an intention as defined by section 37U(1) of the Immigration Ordinance Cap 115 amounting to definition of torture.  The adjudicator found no evidence that the claimed fear would materialise if he was refouled to Bangladesh.

33.  Therefore, the adjudicator concluded the persecution risk failed. The applicant failed to show that the alleged persecution he fears is or would be caused by one or more of the reasons in the refugee convention namely race, religion, nationality, membership of a particular social group or political opinion.  His fear was not well founded.

34.  When considering the BOR 2 risk, the adjudicator found the applicant had not shown there was a personal and real risk of his absolute and non‑derogable rights under Article 2 being violated.

35.  The adjudicator found the applicant’s claim for protection from refoulement under the ground of BOR3 risk failed because he was unable to show he would be subject to a real risk of torture and CIDTP.  He did not satisfy the “minimum level of severity” as required.

36.  The applicant’s claim under the torture risk also fails.  He had failed to show there is a risk of him being subject to torture as defined by the Immigration Ordinance.

37.  The adjudicator noted even if the applicant had established he qualified as a refugee, internal relocation would have been available without undue hardship.

Judicial review

38.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

39.  The legal principles for judicial review are worth repeating.  The court plays a supervisory role and will consider several crucial issues:

a. were there any errors of law;

b. did the procedures adopted at the hearing of the petition/appeal satisfy the high standard of fairness required and;

c. did the substantive decision satisfy the enhanced Wednesbury test.

40.  The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of high fairness have been met.  (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 45)

41.  This court held a hearing on 18 July 2017 and the applicant did not add much to his affirmation.  The applicant’s Form 86 did not set out for grounds on which relief is sought as required but the affidavit in support did; namely there were errors of law, procedural unfairness, failure to apply the proper standard of proof and the decision was Wednesbury unreasonable.  However, the affidavit does not verify facts relied on.

42.  The applicant sets out his complaints against the adjudicator’s decision in the said affidavit.  In summary they are:

(1)   The adjudicator did not research the applicant’s claims in depth.

(2)   The adjudicator failed to rely on relevant, up-to-date, comprehensive and objective COI material.

(3)   The applicant was interviewed by the board hastily and with insufficient time to properly prepare.

(4)   The applicant’s case was not properly considered, wrongly interpreted and treated fairly.

(5)   The duty lawyer assigned for the hearing before the Director of Immigration poorly represented the applicant.

(6)   The Director did not assess the applicant’s right to life, the BOR2 risk before the adjudicator did.

(7)   Both the Director and the adjudicator rejected the claim without any proper enquiry, thorough examination and to the appropriate standard of proof.

43.  Having considered decisions of both the Director and the adjudicator I agree with their reasoning set out in their decisions.  I reject the grounds of review set out in the supporting affidavit.  In any event, what is in the supporting affirmation does not cover all the grounds set out.

44.  I note in the hearing before the adjudicator there is no record of any complaint from the applicant about legal representation below nor being ill-prepared for the hearing.  The applicant confirms he made no complaint. An interpreter was provided and at the applicant’s disposal.  He confirmed he understood the procedure of the hearing.  He added before me that the duty lawyer did not perform well because he did not explain properly the severe problems and conflicts in his country.

45.  The Director did assess the applicants BOR2 claim as confirmed by the notice of further decision dated 23 December 2016.  The applicant does not recall receiving this notice.  The adjudicator went on to reconsider it afresh and also refused the claim on this ground.

46.  The adjudicator in her decision refers to the COI material she assessed and examined.  It includes the same material examined below by the Director.  She ensured compliance with internationally accepted standards as required.  The applicant’s criticism is a bare assertion.

47.  I find the adjudicator’s decision to be without fault.  The adjudicator analysed the material, claims and evidence carefully, logically and with caution.  She also applied the correct standard of proof.  The applicant’s complaints against the adjudicator and the procedure undertaken are not substantiated.  This finding also applies to the hearing before the Director of Immigration and his findings.

48.  Bearing the crucial issues in mind and applying the standard of review in considering leave I find the applicant has not demonstrated he has a reasonably arguable claim with a realistic prospect of success.  There were no errors of law or any evidence of procedural unfairness.  The decisions were not Wednesbury unreasonable.  I see no error in the findings of fact.  Therefore, leave to apply for judicial review is refused.