Md Riat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 578/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant entered Hong Kong illegally on 13 November 2012. He was arrested by the police on 19 January 2013, for illegally remaining. On 21 January 2013, he made a non‑refoulement (“NRF”) claim. He sought NRF protection, by written representation on 11 March 2014, and was released on recognisance on 12 March 2014. He submitted a NRF claim form dated 29 March 2016, and was the subject of an interview by the Director of Immigration (“the Director”) on 25 April 2016.
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HCAL578/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 578 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 Mrs Justice Campbell‑Moffat:
Observations for the Applicant: Procedural history 1.The Applicant entered Hong Kong illegally on 13 November 2012. He was arrested by the police on 19 January 2013, for illegally remaining. On 21 January 2013, he made a non‑refoulement (“NRF”) claim. He sought NRF protection, by written representation on 11 March 2014, and was released on recognisance on 12 March 2014. He submitted a NRF claim form dated 29 March 2016, and was the subject of an interview by the Director of Immigration (“the Director”) on 25 April 2016. 2.The Director of Immigration dismissed his claim on 26 May 2016. He appealed that decision to the Torture Claims Appeal Board (“TCAB”) on 7 June 2016. The Adjudicator, Ms Kay Ransome, heard him on 8 May 2017. His appeal was dismissed on 24 August 2017. The Applicant submitted a Form 86, seeking leave to apply for judicial review on 4 September 2017. He was heard on 2 February 2018. Background 3.The Applicant comes from Bashira in the Munshigonj district of Bangladesh. He joined the Bangladesh Nationalist Party (“BNP”) in 2008. The Awami League (“AL”) are the opposing political party and they were voted into power in the general election of 2008. 4.Between 2010 and 2011, he operated a cosmetics shop. Another man named Sohel, operated a cosmetics shop in competition with him, on the opposite side of the street. Sohel is a member of the AL. In the middle of 2011, Sohel and other AL members sought to persuade the Applicant to become an AL member. When the Applicant refused, Sohel and his AL colleagues threatened and scolded him. He did not go to the police about these threats. 5.Later the same year, the Applicant was attacked by Sohel and his group and was punched, kicked and stabbed. He did not go to a doctor or hospital for his injuries and did not report the matter to the police, as the police would not accept any complaint against members of AL. In retaliation, the Applicant assaulted Sohel with a bamboo cane and stabbed him three times. In the early hours of the next morning, the Applicant set fire to Sohel’s shop. 6.Because he was in fear of investigation by the police, the Applicant immediately fled to Dhaka and then to a different part of Munshigonj. In the interim, Sohel and his colleagues had visited the Applicant’s home and had assaulted the Applicant’s twin brother, mistakenly believing him to be the Applicant. The Applicant alleges that the police were present during this assault but played no part. When the assailants realised they were assaulting the wrong person, they left but not before the police had told his family that four people had died as a result of the fire and that the Applicant was needed for questioning. Subsequently, he learnt that the four people had not died but were badly burned. 7.In September 2012, the Applicant left Bangladesh using his twin brother’s passport with the name Md RIAT, when in fact his name is Md RAIHAN. At that time he attempted to enter Hong Kong from China but was refused entry. He returned to Bangladesh. In October 2012, he returned to China and then entered Hong Kong illegally in November 2012. 8.The basis of the Applicant’s claim is, he says, that he is at risk of harm, even death, if he returned to Bangladesh as a member of the BNP and because the police want him as a suspect for the arson. That, at least, was his claim at the outset, but that claim altered as he proceeded through the CAT claim procedure. The non-refoulement claim 9.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:
Decision and further decision of the Director 10.The Applicant was given time by the Director to support his case with documentary evidence. In particular, the Applicant had suggested that he could prove the police investigation into the arson, but he failed to do so. Nevertheless, the Director proceeded upon the basis that this assertion was not in dispute. 11.The Director analysed the Applicant’s claim on all applicable grounds. He correctly set out the law and key legal principles. In respect of all applicable heads of claim, the Director noted that this was a private dispute between the Applicant and Sohel, in which it was likely that Sohel would bear a grudge arising out of the Applicant’s assault upon him and because the Applicant had set fire to his shop. However, that was a localised problem and the Director did not find there was any risk of harm or ill-treatment by members of AL outwith his local area. He further noted that it was entirely within the legitimate authority of the Bangladeshi police to investigate a case of arson in which four people were badly injured. The Applicant may very well face investigation in Bangladesh but there was no evidence that such investigation or subsequent arrest and charge would be unfair and without due process. Taking into account those findings upon the facts, and placing them within the context of the available COI information as at the date of Decision, the Director considered any risk to the Applicant was reduced or negated by the fact that there was no evidence to suggest that improper pressure was brought to bear by government officials or that they were directly or indirectly complicit in the incidents in question. The Director fairly observed the criticism which can be found within the COI materials of the police in Bangladesh but observed that practical steps were being taken to improve effectiveness and monitor the conduct of the police. There were also alternative avenues of redress but the Applicant had not sought the aid of the police or any other public body. 12.Even if, there was a risk to the Applicant, the Director found such risk could be further reduced by relocation within Bangladesh. The Applicant had previously fled to Dhaka and closer to home in Munshigonj without incident. 13.Given the evidence before the Director, there was no basis for any claim of risk of persecution or torture. Decision of the Adjudicator 14.The Applicant maintained his stance before the Adjudicator but under questioning conceded that he was not worried about the “false” allegations made against him to the police as they could be dealt with by paying money and having the case withdrawn. Nor was he concerned about persecution arising from his political affiliations. He was in fact afraid of what Sohel’s brother would do to him in retaliation for what the Applicant did to Sohel and his shop. He alleged that Sohel’s brother lived in Dhaka and was involved in criminal and terrorist activities. He is also influential in the AL. The Applicant stated that he had learnt that this man had distributed a photo of the Applicant to his men throughout Bangladesh and that he would not be able to relocate anywhere within Bangladesh without this man finding him. The police would not protect him as they are corrupt and Sohel’s brother is in a position to bribe them. In addition, his father had recently died in a road accident and he believed this was connected. 15.The Adjudicator analysed the Applicant’s claim on all applicable grounds. She took into account the written basis of appeal and the additional representations including his change of stance. She correctly set out the law and key legal principles. She accepted that the Applicant was a low level member of the BNP and that the COI information indicated ongoing incidents of violence and intimidation between supporters of opposing political groups. But that was not sufficient to establish a real risk of harm. The Adjudicator found, on the evidence, that the Applicant no longer feared harm arising from his political affiliation nor did he fear arrest and prosecution as he too could pay to have the case withdrawn. He feared reprisal because of the situation between himself and Sohel. 16.The Adjudicator accepted that as a result of the conflict with Sohel and Sohel’s AL affiliation, the Applicant may not be able to obtain adequate state protection if threatened or harmed by them. As a consequence, the Adjudicator went on to consider whether it would be unduly harsh to expect the Applicant to relocate within Bangladesh. In doing so, the Adjudicator considered the allegation of interference from Sohel’s brother but in the absence of evidence in support of the contention made by the Applicant; there was no evidence that he was in a position to procure state intervention against the Applicant. The Adjudicator rejected the suggestion that a photo had been distributed which would result in the Applicant having nowhere safe to hide. She did so on the basis of the population of Bangladesh and the size of the country, finding that the risk of being found would be low. 17.The Adjudicator further found that there were no substantial grounds for believing the applicant would be at risk of being subjected to torture if he were to be returned to Bangladesh. Leave to apply for judicial review 18.This is not a rehearing. It is for this court to consider the grounds submitted for leave to apply for judicial review and to ascertain whether those grounds suggest an arguable case that there was any error of law or procedure or that the Director or Adjudicator had acted unreasonably. The Applicant submitted the following grounds of review. They were not easy to understand. In essence they were:
19.As to i above, at paragraph 40 of her reasons for decision, the Adjudicator makes it clear that she accepts the possibility of tension between the two political parties. She also accepted that there was a possibility that the Applicant would receive threats from AL supporters but that was not sufficient to meet the convention test of “real risk of harm” and thereafter took the matter no further because the Applicant submitted to her that he no longer feared such harm as a result of his political opinions. The harm he feared arose from his personal conflict with Sohel. The Applicant is bound by those concessions made to the Adjudicator and cannot criticise her for reliance upon them. This ground has no merit. 20.As to ii above, the Adjudicator took the COI information into consideration in favour of the Applicant in so far as she accepted at paragraph 44, that the police force may be “corrupt and dysfunctional and reluctant to investigate persons affiliated with the ruling party”. Therefore, she found that the Applicant may not be able to obtain adequate state protection if threatened or harmed and as a result she was obliged to consider the possibility or relocation. Given that the Adjudicator accepted the applicant’s case on risk of inadequate state protection, it was incumbent upon her to concentrate on the COI information in respect of the issue of relocation, which she did fairly and reasonably on the evidence available to her. The Adjudicator specifically pointed out that there was no evidence before her as to the intervention of and status of Sohel’s brother. This ground has no merit. 21.As to iii above, the Adjudicator clearly understood the distinction between a public and private law claim and the Applicant conceded the issue was a private one between himself and Sohel. The claim referred to was not false. The Applicant admitted setting fire to the shop in which four people were badly injured. This ground has no merit. 22.As to iv, v and vi above, the Applicant did not know what these grounds meant and he could not expand upon them. They had not been his words. He submitted that his complaint was that the police had known about the assault on his brother and had been present when it was taking place but he accepted that they had not taken part. The Adjudicator had not properly considered the role of the police. This was the only organ of the state he was referring to. 23.In summary, the Applicant submitted that the Adjudicator had not explained in language he could understand why she had refused his appeal. Conclusion 24.I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The Director and the Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case, gave him the benefit of the doubt and enquired into that case appropriately. I can find no criticism of their determinations, which were open to them on the facts, were often in support of the Applicant’s case and were eminently reasonable. 25.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review. Dated 2nd day of March 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
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