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HCAL 2962/2018
[2020] HKCFI 3032
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2962 OF 2018
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Md Atiar Rahman |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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Director of Immigration
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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 came to Hong Kong illegally from China on 26/4/2007. He was arrested by the police on 11/5/2007. He was released on bail on 13/6/2007. It transpired that he had applied for torture claim[1] which was rejected by the Director on 28/7/2011. He failed to report to the Director since 2/9/2011. He was arrested again on 21/12/2013. He filed a CIDTP claim on 26/12/2013 [2]. He was released on recognizance on 18/1/2014.
2. In the circumstances, the present claim would only be considered on the following grounds: BOR 2, BOR 3 and persecution risk.
Background
3. The applicant was born on 2/5/1983 in Village Saha Pur, Post Sorojgonj, District Chuadanga. He attained class 9 level. He was single and had no contact with his family since 2008. His father was the Union President of the home village and a member of Bangladesh National Party (‘BNP’).
4. About 2004, he joined the BNP while he was a student. He attended rallies sometimes. He was not sure whether his father was a president of BNP. He and his father did not take any official post in the BNP.[3]
His evidence according to the 1st and 2nd questionnaire (9/6/2007, 10/3/2011) and 1st and 2nd Record of Interview (12/10/2007, 6/5/2011)
5. About 2006, he and his group had a fight with Billal’s nephew. The nephew was injured. Billal sent some men to his home to look for him after the fight. He thought he was targeted. He was arrested by the police in connection with the fight. He was released later as the police realized that he was not involved.[4]
6. About five days after the fight, Billal and some Awami Leagues (‘AL’) members looked for him at his home. He was not there. His mother told him that they threatened to kill him as he had beaten Billal’s nephew.
7. About five days later, the same group came to his home and looked for him. Someone armed with big knives. His father later told him that they threatened to kill him. He decided to leave home for Dhaka.He stayed in a hotel in Dhaka for a month[5]. His father told him on the phone that the group came nearly every day and threatened to kill. He decided to fled to Hong Kong.[6]
8. Before he came to Hong Kong, he travelled to India and Nepal for a few days. Billal did not locate him. However, there were many Bangladeshi. He feared they might disclose his whereabouts to Billal. He returned to Mok Bazaar and then to Dhaka. He stayed at Dhaka for 6 months. His father paid for his expenses. Later he obtained a visa and went to China. He did not meet Billal or his men in Dhaka.[7]
9. On 22/4/2007, he took a flight from Dhaka to Kunming, then to Shenzhen. He later took a boat trip to sneak into Hong Kong. He was arrested on 11/5/2007 by the police. [8]
10. He mentioned a murder which occurred about one and a half years before the fight with Billal’s nephew. At about 9pm that day, three men were beheaded/killed by Billal’s gang. No one dare to say anything as Billal was influential and the police would not investigate. [9]
His evidence according to his SCF (20/12/2017) and 3rd record of interview (8/1/2018)
11. He had beaten Billal’s nephew during a cricket match around November 2006. Two days later, Billal sent some men to his home. They told his mother they would kill him.
12. He was afraid that Billal and his men would kill him if he returned to Bangladesh. He had not reported to the police as they were all corrupt.[10] On another occasion, Billal came to his home. Billal told his father that they would kill him. They also vandalized his home.
13. He stayed in Dhaka for 6 months. He also went to India and Nepal for a few days. Billal could not locate him in Dhaka. He had never met Billal.
14. He sneaked into Hong Kong on 26/4/2007. He was arrested by the police on 11/5/2007. He did not make any claim as he was ignorant about the law.
15. He did not report the conduct of Billal to the police in Bangladesh. Billal was a professional extortionist and killer. He heard from a neighbor that Billal and his gang had killed 6 persons about December 2006 but no one was arrested. He thought it was useless to report as Billal was powerful and had good connections with senior AL leaders. He did not think internal relocation was possible as Billal would locate him through AL. There was widespread corruption and there was no reasonable State protection in Bangladesh.[11]
The decision of the Director
16. The Director found that the risk of harm from Billal and his gang was low or unlikely to materialize for the following reasons:
a. For the two incidents when Billal and his men came to his home, they could not locate him. He was not at home on both occasions. They left threatening remarks to his parents. There was no physical harm inflicted on him.
b. During his stay in Dhaka for about 6 months, Billal could not locate him. There was no serious injury, physical or mental, inflicted on him. Likewise, he was safe while travelling in India and Nepal. [12]
c. The applicant could return and leave home safely in the few days after the fight despite he believed Billal had targeted him. He could manage to avoid Billal and his men. His family was never injured. He was safe in Dhaka and other places. These were indicative that Billal had no intention to kill him. It was only his speculation that he was in such imminent danger that he had to leave Bangladesh.[13] His conduct was inconsistent with his claim that he was in real and personal fear of the threat.[14]
d. He did not lodge his torture claim immediately after entering Hong Kong on 26/4/2007. He filed a claim only after he was arrested on 11/5/2007.[15]
e. He knew very little about Billal and had never met him. However, he claimed that Billal would influence the senior members in AL to locate him. About 10 years had elapsed, chances that Billal was still trying to local him was low.[16]
f. The fight was a private matter during a cricket match. There was no evidence that the State was involved. There was no State instigation, consent or acquiescence. He has no problem entering and leaving the country with a passport. He was not targeted by any State authorities. [17]
g. He had not reported the threat to the police in Bangladesh. He however speculated that the police would not assist. Having studied various COI, the Director acknowledged that there were corruption and human rights problems in Bangladesh, however, there were indications that the government had taken steps to enhance police performance and tackle corruption. Institutions such as the Anticorruption Commission and National Human Rights Commission were set up. As a whole, there was evidence that the Bangladesh government was capable to protect citizens against corruption, abuse of power and interference by politicians.[18]
h. The law in Bangladesh allowed freedom of movement within the country. Given his age and background, he should be able to relocate to Dhaka or Chittagong.[19]
i. & The Director was of the view that there was no injury attaining “a minimum level of severity”. There was no severe pain and suffering inflicted either. There was insufficient evidence to suggest that Billal was capable of locating him anywhere in Bangladesh. There was reasonable State protection and internal relocation was not unduly harsh.
17. The ill-treatment to the applicant did not amount to “a minimum level of severity”. There was low risk of future risk of harm. This was a private dispute and the State was not involved. There was reasonable State protection and reasonable relocation opportunities. BOR 3 claim failed.
18. Similarly, the applicant failed to establish that there was arbitrary deprivation of live if he returned to Bangladesh. BOR 2 failed.
19. Given the private nature of the dispute, there was no real risk of persecution under the Convention. Persecution risk failed.
20. The Director rejected all claims on 12/1/2018.
The decision of TCAB
21. The applicant attended a hearing on 2/8/2018 before the adjudicator. The adjudicator pointed out the following in light of the various inconsistencies and confusions in his evidence during the hearing [20]:
a. The adjudicator accepted that the applicant was only a low level supporter or member of BNP. The adjudicator did not accept that his father was president of BNP in Chuadanga. [21]
b. The adjudicator did not accept that Billal’s men could locate him in Dhaka. The adjudicator did not accept that he was in constant fear of being located by Billal and his men while in India and Nepal [22]. The adjudicator did not accept he was stopped in the airport before leaving for Hong Kong. He had not mentioned that to the Director. [23] On the contrary, the adjudicator found that he left Bangladesh without any problem.[24]
c. The adjudicator did not accept that the applicant met a friend in Hong Kong who told him about Billal’s continuous effort to locate him in the home village. He only mentioned this for the first time during the hearing. [25]
22. The adjudicator found that the applicant exaggerated and fabricated those aspects above in order to strengthen his application.
23. For BOR 3 claim, the adjudicator pointed out that it had been about 12 years since the applicant left his home village. He had not contacted his family for over 10 years. The adjudicator found that it would be reasonable for the applicant to relocate to other cities such as Dhaka and Chittagong. There was no substantial ground to believe he would face a real risk of ill-treatment. BOR 3 claim failed.[26]
24. For persecution risk, the adjudicator reiterated that it would be safe for the applicant to relocate to other cities of Bangladesh. There would not be a real risk of persecution. [27]
25. For BOR 2, there was no evidence that the humanitarian conditions in Bangladesh were so dire that the applicant would face a risk of arbitrary deprivation of his life. This ground failed.[28]
26. The adjudicator rejected the applicant’s claim on 3/12/2018.
Judicial review
27. The applicant filed the leave application for judicial review. In his affirmation in support, he pointed out that the adjudicator was unreasonable and failed to consider all the matters.
28. 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 duties of the TCAB and the Director. In general, this court would not interfere.
29. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.
30. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
31. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 4th day of December 2020
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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 4 December 2020
Md Atiar Rahman
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 4 December 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10061/18/1/334/B1139
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3212/17 (Formerly RBCZ 2001900/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Under Part VIIC of the Immigration Ordinance.
[2] This claim was taken as a non-refoulement claim after the commencement of the USM on 3/3/2014.
[3] Decision of the Director, paragraphs 10.6-10.13.
[4] Decision of the Director, paragraphs 10.5.
[5] In his 2nd questionnaire/2nd record of interview, he said he stayed in Dhaka for 6 months. Decision of the Director, paragraphs 10.38.
[6] Decision of the Director, paragraphs 10.29-10.37, there was a slightly different version in paragraphs 10.38-10.44.
[7] Decision of the Director, paragraphs 10.45-10.53.
[8] Decision of the Director, paragraphs 10.54-10.58.
[9] Decision of the Director, paragraphs 10.26-10.28.
[10] Decision of the Director, paragraphs 10.62-10.63.
[11] Decision of the Director, paragraphs 10.64-10.78.
[12] Decision of the Director, paragraphs 23-26.
[13] Decision of the Director, paragraphs 27.
[14] Decision of the Director, paragraphs 29.
[15] Decision of the Director, paragraphs 30.
[16] Decision of the Director, paragraphs 31.
[17] Decision of the Director, paragraphs 32-34, 39.
[18] Decision of the Director, paragraphs 35-41.
[19] Decision of the Director, paragraphs 43-50.
[20] Decision of TCAB, paragraphs 11-25.
[21] Decision of TCAB, paragraph 36.
[22] Decision of TCAB, paragraphs 9, 14-15.
[23] Decision of TCAB, paragraphs 20-22, 38.
[24] Decision of TCAB, paragraph 40.
[25] Decision of TCAB, paragraph 39.
[26] Decision of TCAB, paragraphs 43-55.
[27] Decision of TCAB, paragraphs 56-60.
[28] Decision of TCAB, paragraphs 61-62.
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