Zumman Md v. Torture Claims Appeal Board

HCAL 2129/2018

[2021] HKCFI 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2129 of 2018

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 28-year-old national of Bangladesh who entered Hong Kong illegally on 28 June 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the Khan family in his home village over their land dispute with his family and/or by the police over a false charge brought against him by the Khan family. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Gulkhar, Union Dhorkhar, Akhaura of District Brahmanbaria, Bangladesh where his family the Mollahs had been in serious dispute with the Khan family for years over a piece of land in the village.

3.The Khans were powerful and influential in the village who were affiliated with the ruling political party Awami League (“AL”) with some of their family members in the AL leadership and had financially supported the party. 

4.One day on 25 June 2013 while he was at the town, the Applicant received a telephone call from his mother that a big fight had broken out between the Mollah family and the Khan family outside their home which led to the death of two members of the Khan family.

5.To stay away from the conflict the Applicant and his parents took shelter in his sister’s home in Sylhet, but two days later he heard that as a result of charges being brought by the Khan family against the Mollah family over the death of their two members in that fight, the police had issued arrest warrants against many members of the Mollah family including the Applicant, his father and one of his brothers Nizam.

6.On 28 June 2013 the Applicant was informed by a neighbor that the Khan family had broken into his family home in the village and looted all the valuables in the house.  

7.In about mid-July 2013, the Applicant heard that his brother Nizam had been arrested by the police in Dhaka, and so he and his parents moved to stay in a friend’s place in Village Chowdhury Bazar of Bishonath.

8.In early 2014 after hearing that Nizam had been transferred to Brahmanbaria and was subsequently released on bail and was admitted into a hospital, the Applicant therefore travelled to Brahmanbaria to visit him in the hospital where he found Nizam in very bad physical conditions, of which he was told were due to having been badly beaten by the police during his detention that his body was swollen and he could hardly walk.

9.On the same night the Applicant returned to Village Chowdhury Bazar and told his parents of what happened to Nizam. Soon thereafter his father surrendered to the police and was locked up for about one month before being allowed on bail by the Brahmanbaria District Court.  

10.As the Applicant was concerned for his safety, he therefore departed Bangladesh on 24 June 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

11.Whilst being released on recognizance pending determination of his claim, the Applicant was informed by his sister in Bangladesh that his father was killed in an incident in August 2014 when his car was struck by another vehicle which sped away afterwards, and of which she suspected that it was arranged by the Khans family against their father, while the arrest warrant against him was still valid and that the case was still pending as no trial had been conducted as many of the defendants had not yet been captured.

12.The Applicant also heard that his brother Nizam had been put back into police custody again after his wedding where he had become very ill due to lack of proper medical care. In April 2017 he was told by his mother that one of the Mollahs members, Achhmot Ali, arrested by the police earlier had died from their torture whilst in police detention, and in May 2017 he was also informed by his mother that his brother Nizam had since also died in police custody after having been tortured again by the police.  

13.By a Notice of Decision dated 8 September 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

14.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Khan family or the police upon his return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that the Khan family is still going after him, or that he would be charged of any serious crime by the police given the fact that he was able to leave Bangladesh without serious difficulty, or that he would be tortured by the police if arrested, that state or police protection would be available to the Applicant if resorted to as well as proper legal and judicial systems to protect his right for a fair trial of any criminal charge which may be launched against him by the police, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Sylhet or Chittagong where it would be difficult if not impossible for the Khan family to locate him.

15.By a Notice of Further Decision dated 25 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering further submissions from him via DLS relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

16.The Applicant was then already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended two oral hearings on 20 July 2018 and 23 August 2018 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

17.In its decision the Board accepted the Applicant’s case that he fears that the Khans will locate and kill him upon his return to Bangladesh, but noted of no suggestion that any of the Mollah clan had been harmed or killed in the process or any evidence of the Khans trying to locate him during his stay in Sylhet for about a year before leaving Bangladesh, that there is no evidence of any official involvement that the risk of the Applicant being located by the Khans if he were to move to Sylhet or other parts of Bangladesh to be minimal and unreal, that if the Applicant were to be arrested by police over the false charge brought by the Khan family against him, it should be up to the courts in Bangladesh to determine, that the authorities have not ignored the unsatisfactory conditions of the prison system, and that other than the Applicant’s own words there is no other evidence that his brother Nizam had indeed been tortured by the police or that the Applicant will face any real risk of being tortured by the police upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds.

18.In fact, the Board did accept that the Applicant is accused of having committed rather serious offences and that the police want to arrest him [39], and hence it would be imperative to note here the Adjudicator’s assessments of the Applicant’s claimed fear of being tortured by the police upon his return to Bangladesh in the decision:

“42. I regard the allegation of police torture back home as the gravamen of the Claim. Country of origin information does indicate justification for serious concerns about the police in Bangladesh. There are, for example, instances of corruption, torture and even extra-judicial killings (see, for example, Hearing Bundle pages 17, 186 to 192 and 382). The pivotal question here is specific, i.e., whether the Claimant, if refouled, will risk torture by the Bangladesh police (resulting in serious bodily/mental harm or even death). Regardless of which of the Applicable Grounds is considered, this risk must be real.

43. (a) The Claimant alleged that police torture led to the deaths of Nizam and Achhmot Ali.

(b) The Claimant had visited Nizam in hospital and observed his condition. The question remains whether Nizam had been tortured by the police. The torture was alleged by Nizam. There are, however, no details on such matters as where and how he had been assaulted, by whom and what the police wanted to achieve by such torture. I thought these were matters that would readily be divulged by Nizam himself or at least asked of by the Claimant during his hospital visit. The Claimant said to the effect that he did not complain (on Nizam’s behalf) to higher authority in the police or other government/non-governmental agencies for fear of revealing his whereabouts to the police. There is, however, no indication that other members of his family (including Nizam) ever attempted to do so. The Father, being the headmaster of a government primary school, would surely know of the availability of such avenues. There is no indication that the Father complained after he himself had been bailed out. The Claimant explained that it was/is the system in Bangladesh that the police would torture those the police believed had committed crimes. Apart from the Claimant’s assertion, I do not see anything else suggestive of such a system. Neither do I see any valid basis for this assertion. There is no suggestion that the father, the alleged instigator of the Fight (see excerpt of police investigation report at Hearing Bundle page 216 where the Father is referred to as “Defendant No. 1, Tajul Islam”), was tortured during the month he was in police custody. There is no indication that other Mollahs in police custody (see paragraph 32 above) had been tortured. I find it inconceivable that the Father and these Mollahs in custody are not believed by the police to be criminals. If so, why arrest and detain them in the first place? No medical evidence has been produced to show whether the alleged injuries suffered by Nizam were consistent with being assaulted/tortured. I note that the Claimant had been able to secure and produce newspaper articles and court/police documents from Bangladesh. There is no medical report in relation to Nizam. Whilst I am not saying that such medical evidence is mandatory, I do feel its absence in this case can affect weight, if any, to be given to the allegation of Nizam being tortured by the police (and dying therefrom). I am not willing to give weight to such allegation after taking into account the foregoing matters.

(c) Information about the death by torture of Achhmot Ali proceeded from the Mother. There is no indication as to the provenance of her knowledge. There is even nothing to indicate the relationship between Achhmot Ali and the Mother was so close that she would be in direct contact with him. I do not think I am speculating when I say that her information was based on hearsay (if not multiple hearsay). I am not prepared to give weight to this information alleging Achhmot Ali had been tortured by the police and died from such torture.

(d) I note that the police investigating the Fight/ Complaint have asked for withdrawal of charges against 2 persons on the side of the Mollah clan, Md. Delowar Hossain and Mamun Mia. This is on the basis that police investigation did not show their involvement in the Fight despite the Complaint (see police investigation report at Hearing Bundle pages 202, 204, 210, 218, 220 and 268). This suggests to me that the police handling/investigating the Complaint are discharging properly their duty.

(e) Despite the gross and unforgivable excesses of some police officers and other law enforcement agents in Bangladesh as disclosed in the country of origin information, I am not satisfied there is a real risk of the Claimant being subjected to police torture in Bangladesh.”

19.On 5 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward essentially one ground for his intended challenge, namely that the decision is irrational in taking too narrow a view of the available evidence or is illogical in its consideration of those evidence in determining the risk of the police torture which the Applicant may face upon his arrest if he is to return to Bangladesh.

20.Mr Rowan Hunter who appeared for the Applicant at the hearing submits on his behalf that while the Adjudicator correctly located the main and most important element of the Applicant’s case in being the allegation of police torture, and have accepted:

(a)   that he faces a serious charge in Bangladesh and is subject to arrest by the police;

(b)   that the prison conditions in the country are poor and inadequate and that prisoners often die in custody; and

(c)   that COI also indicates that corruption, torture and extra-judicial killings are recorded against the Bangladeshi police.    

21.Nonetheless, Mr Hunter submits, the Adjudicator proceeded to find that the Applicant is not at risk of death or serious harm if repatriated for the reasons stated in the Board’s decision noted above and as follows:

(a)   that the Applicant had not offered any details regarding where, how, why and by whom Nizam had been assaulted or tortured [43b];

(b)   that no member of the Mollah family had made complaint to higher authority about Nizam’s treatment, nor did the Applicant’s father when he was bailed, though as an educated man he must know of such mechanisms of complaint [43b];

(c)   that apart from the Applicant’s assertion, there is nothing to show that the police routinely torture those accused of crimes [43b];

(d)   that the Applicant’s father had been accused of the same crime and there is no evidence he was tortured [43b];

(e)   that no medical report has been produced detailing the Applicant’s brother Nizam’s condition [43b]; and

(f)    that the police have dropped charges against two of the Mollahs involved in the fight which is indicative of proper police procedure [43d].   

22.Mr Hunter submits that the Applicant challenges these decisions on the following basis that they are not rational.

23.Firstly, Mr Hunter points out that, and as noted above, the Adjudicator in principle did not dispute the evidence of police brutality in Bangladesh and relied on the COI before the Board including those which discussed reforms to the police in the Hearing Bundle that detailed arbitrary arrest, extra-judicial killings, torture and the general impunity of the police which dated between 2013 and 2016, and hence the logical deduction is that those reforms have not worked, and that police violence and corruption is an ongoing issue in Bangladesh.

24.Secondly, when the Adjudicator stated that there is nothing to show that the courts in Bangladesh lack integrity, the COI item of the US Department of State for 2015 (HB/378) did show that there is substantial corruption in the courts and that judicial independence is vitiated, and hence the Adjudicator has either misunderstood or underestimated the plain evidence in the hearing bundle upon which he relied that both police and courts in Bangladesh are corrupt and that police brutality is widespread, arbitrary and largely unchecked.

25.This show that the Adjudicator, Mr Hunter submits, has either misunderstood or underestimated the plain evidence in the materials before the Board and upon which he relied that both police and the courts in Bangladesh are corrupt and that police brutality is widespread, arbitrary and largely unchecked. 

26.Mr Hunter therefore submits that the Applicant’s challenge to the Board’s decision must be seen in this light, and thus the answers to the Adjudicator’s questions raised and summarized at [21] above are obvious in the circumstances, including the fact that when Nizam was returned to Brahmanbaria, he was assaulted by the police there and was neglected such that his condition worsened, and that he was assaulted simply because he was in the power of the police who routinely abuse prisoners, and the fact that he was a designated enemy of a local clan with links to the government must surely be a factor but ignored by the Adjudicator.

27.As regards 21(b) above in which the Adjudicator questioned the lack of complaints from the Mollah family, Mr Hunter argues that in the environment as described in the COI, it is not surprising that no one would have complained, and that the Adjudicator simply failed to grasp that in a society that is pervasively corrupt, complaints are only successful if backed by influence, but which the Applicant’s family did not have but the Khans did.

28.As for 21(c), (d) and (f) in which the Adjudicator questioned that there is nothing to show that the police routinely torture those accused of crimes, as the Applicant’s father who was accused of the same crime was never tortured, of which Mr Hunter submits is contradicted by not only the information available in the COI before the Board, but that given the assertion that they had tortured his brother, there is every reason to suppose that the Applicant would receive the same treatment, particularly as he has evaded arrest for so long. 

29.Concerning 21(e) in which the Adjudicator questioned the lack of medical evidence as to Nizam’s condition, Mr Hunter submits that since the Adjudicator did earlier state that it is not strictly necessary, but proceeded to refuse to give weight to the allegation of him being tortured by the police in the absence of such medical report is illogical and a contradiction, and that it is also wrong to say that the absence of something lessens the weight of other evidence as its absence is of no effect, that the allegation should be given weight on its own merit in the circumstances, and that the availability of a medical report would give strength to or weaken the weight depending on its contents, but its unavailability is irrelevant.

30.Mr Hunter submits in the premises that the Adjudicator has taken too narrow or misunderstood or underestimated the implications of the evidence, and that properly considered, the available evidence is strongly indicative of the Applicant being under persecution risk and risk of cruel, inhuman and degrading treatment if repatriated, as a person wanted by the police in the circumstances of Bangladesh, the Applicant is in the category of persons likely to thus suffer. Thus, Mr Hunter submits, all these amount to irrationality such that the Board’s Decision is Wednesbury unreasonable.     

31.As noted above, having essentially accepted the Applicant’s case as summarized in the Board’s Decision at [14] – [33] otherwise stated, the Adjudicator proceeded to identify, correctly in my view, that the main issue before the Board turned on whether there were substantial grounds for believing that the Applicant would be in danger of being subjected to torture by the police if he were to be returned to Bangladesh [42].

32.In assessing such risk, the Adjudicator also found, as noted above, from the COI available before the Board that there were justifications for serious concerns about the police in Bangladesh including corruption, torture and extra-judicial killings, but concluded that he was not satisfied there is a real risk of the Applicant being subjected to police torture in Bangladesh essentially because there was no other details or medical evidence that Nizam had indeed been tortured by the police, that no other arrested members of the Mollahs including his father had also been tortured while in police custody, or that there was any reliable evidence that Achhmot Ali had died from police torture other than hearsay from the Applicant’s mother.

33.In TK v Jenkins & Anor [2013] 1 HKC 526, which was also cited by the Adjudicator on the principle regarding standard of proof, the Court of Appeal held that while the burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture, high standards of fairness require that the claimant be given every reasonable opportunity to establish his claim, as it was elaborated in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 as follows:

“53. … First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the Refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provide a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned…” 

34.High standards of fairness also require that the exercise of determining whether such a claim is valid must be one of “joint endeavour” between the claimant and the decision-maker during the screening process: see CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 47.

35.Furthermore, the standard required of proving the likelihood or probability of the torture claimant being subjected to torture if returned to his home country is “more than a mere possibility” but not needing to be “highly likely”, as the Guidelines issued by the Director for handling claims under the enhanced screening process stated in paragraph 36 under “Standard of Proof” as follows:

“ … In Article 3 of the Convention, ‘substantial grounds’ is required to establish a claim, which is more than a mere possibility of torture but do not need to be highly likely to occur to satisfy that provision’s conditions. The risk of torture must go beyond mere theory or suspicion. The risk does not have to meet the test of being ‘highly probable’, but it must be ‘personal and present’. For the purpose of Article 3 of the Convention, a foreseeable, real and personal risk of being tortured must exist in the country to which a person is returned.”

36.In deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question, in addition to take into account of all relevant considerations including the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (Article 3(2) of the CAT), the Director and the Adjudicator would need to make findings of primary facts comprising the claimant’s story, with the burden laid with the claimant to convince the Director and the Adjudicator that what he said was true, subject to high standards of fairness as noted above: see TK v Jenkins at paragraph 30.   

37.In the present case, as noted in the Board’s decision, the Adjudicator accepted the Applicant’s case as to how he learnt of his brother Nizam being tortured by the police in [25] as follows:

“ … the Claimant risked detection and travelled to Brahmanbaria to visit Nizam in hospital. The Claimant found Nizam in a very poor physical state. His body was swollen and he could not walk or sit. Nizam said he had been beaten a lot by the police whilst in their custody. The Claimant later learned that Nizam had not been able to walk for about a month.”

38.Given that it was in such situation that the Applicant learnt of the torture of Nizam, it seems to me reasonably arguable that the Adjudicator’s decision of not giving weight to such allegation because “There are, however, no details on such matters as where and how he had been assaulted, by whom and what the police wanted to achieve by such torture” [43b] is irrational or Wednesbury unreasonable.

39.In fact, if indeed the Adjudicator found those details relevant or necessary, he should have raised them with the Applicant or at least to draw his attention to them so that they could be addressed by the Applicant, but which the Adjudicator did not appear to have done so.

40.It is also in my view reasonably arguable that the Adjudicator’s other reasons for rejecting the Applicant’s claim of risk of being tortured by the police is irrational or Wednesbury unreasonable as follows:

(a)   that “no medical evidence has been produced to show whether the alleged injuries suffered by Nizam were consistent with being assaulted/tortured” when there is no evidence that such is available or that it could be readily obtained by the Applicant;

(b)   that no other Mollahs in police custody had been tortured despite the alleged torture of Nizam and Achhmot Ali and the available COI accepted by the Board as justifications for serious concerns about police torture in Bangladesh which the Adjudicator had earlier described as “gross and unforgivable excesses” [43(e)];

(c)   that no weight was given to the information from the Applicant’s mother about the death by torture of Achhmot Ali because there is “nothing to indicate the relationship between Achhmot Ali and the Mother was so close that she would be in direct contact with him” when it was accepted that Achhmot Ali was a paternal cousin of the Applicant and obviously a member of the Mollah family.   

41.In the premises and for these reasons, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the above basis, and to issue an originating summons under Order 53 rule 5 of the Rules of the High Court, Cap 4A within 14 days from the date of this decision, and direct that he shall serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.  

Dated the 11^th day of January 2021.

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