Mr. Riyuz Maya v. Torture Claims Appeal Board

HCAL281/2017

[2018] HKCFI 168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.281 of 2017

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 village Bashbaria, Gopalgonj District, Bangladesh. He was born on 5 April 1979. He received formal education for 11 years. He attended college for two years until 2002. He was single. He was a bus driver until December 2003. His parents and siblings were in Bangladesh.

2.His family were supporters of the Awami League (AL). He joined the AL in 2000. He was the campaign manager of AL at Gopalgonj District in 2001. He was responsible for notifying members of party activities.

3.In 2002, he was appointed the Joint Secretary of the labour wing of AL. He dealt with labour complaints from farmers, drivers and labourers. The Joint Organisation Secretary, Rony, also wanted that appointment. There was hostility and mistrust developed between them after the applicant’s appointment.

4.He feared that he would be killed or harmed by Rony and his supporters. The Bangladesh National Party (BNP) was also after him for his position in AL. He was also pursued by the police for two murder cases framed up by the BNP.

5.The applicant came to Hong Kong on 9 June 2006. He overstayed until October 2007 before being arrested by the police. He was detained by the Immigration Department until 3 November 2007. He was then released on recognizance.

6.During his recognisance period, he was arrested for working in breach of the condition of stay. He was convicted and sentenced to 2 months’ imprisonment in June 2010. He was released on recognisance in August 2010 after serving the sentence.

7.In April 2014, he elected not to rely on all previous questionnaires and interviews. He informed the Director of Immigration through Duty Lawyer Services. Those material were submitted before December 2009. He filed a fresh torture claim form and several supplementary statements in 2014. He was also interviewed by the Director in 2014.

8.The Director of Immigration rejected his claim on 23 January 2015 on all applicable grounds. The main reasons being:

a. The applicant remained safe in Gopalgonj City, Khulna and Dhaka from December 2005 until he left Bangladesh in May 2006. He was not located by Rony or BNP during this period.

b. Although he alleged that the murders were fabrications, he chose to abscond and not to defend despite he was represented.

c. Despite his allegation of torture by the police in December 2003, he and his family did not complain to other authorities. The conduct of those bribed officers who allegedly had tortured him could not be taken as conduct consented or acquiesced by the government.

d. The relevant COI revealed that the Bangladesh government had taken positive steps to improve police professionalism, tackle corruption and interventions from political parties.

e. In addition, there was viable relocation to Dhaka.

9.The Adjudicator rejected his appeal on 10 March 2017. The Adjudicator had grave doubt as to the credibility of the applicant and the evidence he adduced for the following reasons:

a. In the transcript of the 1^st murder trial on 25 March 2004, the ‘3^rd defendant’ (allegedly the applicant) was recorded to be 30 years of age. However, the applicant according to his torture claim form was born on 5 April 1979. The applicant should be about 25 years old on the date of the 1^st murder trial.

b. Rony, who was the 4^th defendant, was recorded as the Vice President of the labour wing of AL in that transcript. Whereas the ‘3^rd defendant’ (allegedly the applicant) was not recorded as the Joint Secretary of the labour wing of AL.

c. According to that transcript, Rony was the Vice President, there was no reason for him to compete for the post of Joint Secretary as the applicant alleged. The reason giving rise to the mutual hostility between Rony and the applicant was untenable.

d. After the first day of the 1^st murder trial, the applicant was absent at the trial. He explained that the outcome was fixed. He chose to abscond. The Adjudicator did not accept this explanation. It was not convincing if this was a frame up.

e. The applicant absconded and was absent from the 1^st murder trial during 2004—2006. He could not have actively involved in the AL activities. There was no need for the BNP to stop him from these activities.

f. In relation to the 2^nd murder trial, the Chhatral League leader, Rakib Houssain Tushar, was killed in a strike on 31 July 2004 according to a newspaper clipping. The applicant claimed that he was present. He should not have mistaken about the dates. According to the applicant, Tushar was killed in a political meeting in 2005 or 2006.

g. The applicant alleged that he was later framed up for murdering Rakib Houssain Tushar in the political meeting above. He produced the transcript of this murder trial in which he and some AL members were defendants. According to the transcript and the post-mortem evidence of that trial, a person named Rakib Houssain Tushar was chopped to death on 9 December 2005. This deceased was a student. This deceased could not be the same Tushar whom the applicant alleged had been killed by gun shots from BNP at the political meeting in 2005 or 2006. Further, Tushar—the Chhatral League leader—was killed during a strike on 31 July 2004 according to the newspaper clipping. The allegation of the frame up was not credible.

10.Given that the Adjudicator disbelieved the story of the applicant, she went on to dismiss the appeal on all applicable grounds.

Leave for Judicial Review

11.The applicant filed his Form 86 on 9 June 2017. He sought leave to review the decision of the TCAB. His application for legal aid was refused on 14 September 2017.

12.This court fixed a hearing on 16 August 2017. The notice of hearing was sent to his address as set out in the Form 86 by ordinary and registered post. Both notices were returned. The reason given by the Post Office was ‘incomplete address’.  The applicant was absent on the date of the hearing.

13.Under s. 37ZA (2), Cap. 115, the applicant has a duty to ensure that all his contact address and phone numbers should be updated promptly. There was no evidence that the address on the Form 86 was inaccurate.

14.In the circumstances, I exercise the power under O.1B r.1(2)(l) to consider the leave application without a hearing despite the applicant indicated otherwise by virtue of O.53 r.3(3). I refused leave on 16 August 2017.

Conclusion

15.The applicant repeated in his affidavit that he was not satisfied with the Adjudicator’s decision as he had filed substantial supporting documents. He also argued that the decision of the Director was unreasonable and premised on false logic.

16.Having considered all the information above, I agree with the findings of the Director and the Adjudicator. The applicant’s evidence was not credible.

17.I do not find any error in law or in procedure. I do not find any public law ground either.

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.

19.The applicant wrote to this court on 4 October 2017 to update his address. I do not find this of any assistance given I have already refused leave for judicial review.

Dated  26 January 2018.

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

Form CALL-1