Palash Bakchi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 920/2019

[2021] HKCFI 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 920 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being absent in open court;

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 23 March 2009. He was arrested by the police.  He was released on bail on 4 April 2009.  He applied for torture claim on 26 March 2009[1] which was rejected by the Director on 28 October 2011.  His appeal to TCAB was dismissed on 29 November 2011.  His leave application for judicial review (HCAL 170/2012) was refused by the Court of First Instance and Court of Appeal.[2]

2.The applicant filed this non-refoulement claim on 8 October 2014. It was refused by the Director on 27 April 2017.  His appeal was dismissed by the TCAB on 4 March 2019.

3.During the interim on 14 June 2010, the applicant was convicted and sentenced to 2 months’ imprisonment for unlawful employment. 

4.In the circumstances, the present claim would only be considered on the following grounds: BOR 2, BOR 3 and persecution risk. 

Background

5.The applicant was born on 12 March 1980 in Village Bukrail, District Gopalgonj, Bangladesh.  He received no education.  He was single and was a carpenter for about 6 years.  His family was the only Hindu family in the home village which was Muslim in majority.  The family also supported Bangladesh Nationalist Party (‘BNP’).

6.From 2001—2006, he was the Organizational Secretary of the BNP (youth wing).  He organized rallies and mobilized people in discussions in politics.

7.His family was devoted followers of the local Hindu Temple.  They attended celebrations and ceremonies.  He was also an active member of the Hindu Kalyan Trust which facilitated the welfare of Hindu followers.

8.His family had long standing grudges with the Muslim neighborhood. They were verbally abused and assaulted.  Their family house was forcibly occupied but he could not recall the detail.[3]

The 1^st Incident [4]

9.On 15 October 2006, some supporters of the Awami League (“AL”) came to his house and attacked his mother.  Her left ear drum was ruptured.  He could not recall if his younger brother was injured.  He rushed home and took his mother to his uncle’s house.  His mother was treated by his uncle who was a doctor.  His mother told him not to report to the police for fear of revenge or being killed.  He was not attacked in this incident.

The 2^nd Incident [5]

10.About 28 October 2006 when the BNP government stepped down [6], the Secretary and supporters of AL came to his house and attacked his family.  He anticipated this attack as he was the eldest son.  He fled to his uncle’s house beforehand.  He did not know the detail of the attack.   

11.He returned home the next day and found that their properties and cattle were taken away.  He learned that his family had moved to a Hindu neighbor’s house.  He did not contact his family but went to make a report at the Kashiani Police Station. 

12.In the police station, there were leaders from AL accusing him of causing disharmony between Hindu and Muslim.  The police did not record his report.  Instead, they detained him overnight because of the accusation by the AL leaders.  Nothing happened during the detention.

13.The next day, his father and uncle offered bribe to the police.  He was released.  He stayed with his uncle in Gopalgonj since then.

14.In the following year, he and his family stayed with his uncle at Gopalgonj and his aunt at Narail.  They were safe.  He did not return to the home village.  He did not follow up with the police for fear of arrest or beatings as he was a supporter of BNP.

15.In early 2007, he learned from his brother that Hasmat Ali Khan (“Khan”), a senior leader of AL, had filed a report against him for ‘assault with a motive to kill and extortion’.  However, the police did not contact him because of that.  He did not know the reasons behind Khan’s report.

16.After discussing with his cousin and family, he decided to come to Hong Kong for protection.  He applied for a passport and flew to China from Dhaka in November 2007 through an agent, Babu Bhai. 

17.This agent abandoned him in China.  He stayed with others for about a year living on the money [7] given by his cousin.  Another agent arranged him and others to sneak into Hong Kong.  He went to Kam Tin and worked for a Bengali.  He was subsequently arrested by the police.

18.He resumed contact with his family in 2011.  His family had returned to the house in the home village.  He learned from his middle brother that the family house was burnt and looted.  The Muslim villagers proposed to give some money for his family to go to India.  He did not know the outcome.  He did not know what happened to his family from 2011—2014. 

The 3^rd Incident [8]

19.He learned from his middle brother that on 14 January 2014, a mob led by Khan looted his family house.  His parents and younger brother were abducted.  His middle brother refused to tell him what happened to them.  His middle brother reported to the police.  Despite complaints from others [9], the police did not take any action as his family was  Hindu.  His middle brother had fled to India around October 2016.  He had no further information from this middle brother after that.

20.He was in fear that he might be killed by supporters of AL even at the airport.  He might also be attacked by Muslims because he was a Hindu. 

21.There was no protection from the police or Bangladeshi authorities as he was a Hindu.  The official channels were not of any assistance.  He could not stay anywhere in Bangladesh.

The decision of the Director [10]

22.The Director found that the risk of harm from AL and Muslims was low for the following reasons:

(a)  For the alleged ill treatments due to AL and BNP political differences, the applicant could not give more detail of any other attack except the few mentioned by him in the NCF.  Similarly, there was no detail as to the attack due to Muslim and Hindu religious differences in the neighbourhood of the home village.

(b)  His family fled the house after the 1^st incident.  He was not injured.  His family returned to the family house in 2011 and stayed until 2014, there was no evidence that any of the family members was injured in this period. 

(c)  During the 3^rd incident, it was alleged that his mother and younger brother was abducted.  There was no evidence from the middle brother as to the their situation.  In all, the ill-treatment to his family did not attain a minimum level of severity.

(d)  The applicant’s family had been living in the home village for a long time among Muslim majority.  There was no evidence that anyone of them had suffered serious injuries due to the religious differences.  Had the Muslims wanted to harm his family, it would be easy.  During the period of their absence from the home village from 2006-2011, nothing happened to his family. 

(e)  Similarly, the family was safe during 2011-2014 when they returned to the home village.  The fact that his family chose to return indicated that there was no imminent risk of serious ill-treatment from the neighbours.

(f)  It appeared that the supporters of AL were more interested in the family house instead of hatred arising from religious or political differences. 

(g)  The fact that Khan was involved in the 3^rd incident did not suggest that the AL was involved.  In fact, nothing indicated that the mob was connected with AL or its supporters.  Nor was this incident politically motivated. 

(h)  The neighbours did not continue their attack once the applicant and his family left the home village and stay with his uncle and aunt.  Apart from those in the home village, there was no AL supporters or Muslims elsewhere in Bangladesh targeting his family.  There was no evidence that he was still targeted after leaving Bangladesh.

(i)  The applicant was only a member of the BNP (youth wing).  He did not hold any influential post in BNP that would attract the attention of AL throughout those years.

(j)  He had left Bangladesh since 2007, the political hostility, if it existed at all, would probably have dissipated given the long lapse of time.

(k)  There was no evidence of official involvement.  There was no evidence that any government authority was responsible.   

(l)  Although he was detained by the police after the 2^nd incident allegedly on the strength of the accusations by AL leaders.  He was not ill-treated while detained.  He was released on the next day after offering a bribe.  There was no follow up on this false case.

(m)  As to the 3^rd incident, the police registered the report from his middle brother.  The fact that the police did not subsequently arrest anyone was not necessary an indication of inaction.  There was no evidence that the police deliberately ignore the complaint due to political influences from AL.

(n)  The misconduct of the police in his locality should not be taken as the attitude of the Bangladesh police in general.  The applicant had not tried to complain to other police station or official channels.

(o)  Having studied various COI, the Director acknowledged that there were corruption, torture of political detainees and police abuse of power in Bangladesh despite a functioning criminal justice system.  The government had taken steps to enhance police performance and tackle corruption.  There was the “UN Development Program” to improve police professionalism.  The Police Internal Oversight unit was set up to monitor corruption.  There was legal aid available to poor litigants.  The National Legal Aid Services Organisation assisted in implementing legal aid reforms.  As a whole, the Bangladesh government was not indifferent to the social situation.  It was capable to protect citizens against corruption, abuse of power by the police though not wholly effective.

(p)  Bangladesh was a large country with huge population.  The law allowed freedom of movement within the country.  Khulna and Dhaka were the possible alternatives.  The Bangladesh government were making effort to protect the rights of minorities.  In fact, the applicant and his family were not attacked by Muslims elsewhere in The country.  It was inconceivable that AL or Muslims would employ national network to target a BNP supporter with the background as the applicant.  Given his age and background, he should be able to relocate to Dhaka or Khulna.  It was not unduly harsh.

(q)  The Director opined that the complaint letters only repeated his account of the incidents and could not take his case further.  The COI he suggested had been considered during the Director’s assessment. 

23.The ill-treatment to the applicant did not amount to “a minimum level of severity”.  There was low risk of future risk of harm.  The State was not involved.  There was reasonable State protection and reasonable relocation opportunities.  BOR 3 claim failed.

24.Similarly, the applicant failed to establish that there was arbitrary deprivation of life if he returned to Bangladesh.  BOR 2 failed.

25.Given that the cause of the incidents was the family house instead of religion or politics, there was no real risk of persecution under the Convention.  Persecution risk failed. 

26.The Director rejected all claims on 27 April 2017.

The decision of TCAB

27.The applicant attended a hearing on 27 November 2017 before the adjudicator.  He confirmed the contents of his SCF and records of the screening interviews.  The adjudicator commented as follows [11]:

(a)  The applicant and his family were only supporters of BNP.  It was quite apparent that the difficulties with his neighbors was related to religion rather than politics.

(b)  Given the lapse of 12 years, the AL members would not insist to persecute the applicant on his return.

(c)  The applicant had not applied for protection in China for nearly a year. The applicant offered no explanation.

(d)  The past events which the applicant claimed were mostly hearsay in nature.  Its weight was greatly reduced. 

(e)  The applicant was never injured to a minimum level of severity.  He failed to establish a claim under the USM. 

28.The adjudicator found that the applicant would not be subject to any ill-treatment if returned to Bangladesh.

29.According the COI on International Religious Freedom, the constitution of Bangladesh recognized equal status and equal rights in religions.  It upheld secularism and prohibit abuse of religion for political purposes and discrimination.  This was adequate State protection to alleviate any genuine fear the applicant might have.

30.The adjudicator was satisfied that Khulna or Dhaka would be viable alternatives.  In fact, he was safe in Gopalgonj and Narail for the year before he left Bangladesh.  There was no problem from Muslims or AL supporters.

31.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 suffered any ill-treatment to the minimum level of severity.  There was no substantial ground to believe he would face a real risk of ill-treatment.  BOR 3 claim failed.

32.For persecution risk, the adjudicator reiterated that it would be safe for the applicant to relocate to other cities of Bangladesh.  His fear of harm due to political or religious reasons were not well-founded.  There would not be a real risk of persecution. 

33.For BOR 2, there was no evidence that the applicant would face a risk of arbitrary deprivation of his life.  This ground failed.

34.The adjudicator rejected the applicant’s claim on 4 March 2019.

Judicial review

35.The applicant filed the leave application for judicial review on 4 April 2019.  In his affirmation, he reiterated in gist the background of his claim.  He pointed out that the adjudicator and the Director failed to realise his problem. 

36.A hearing was set on 24 November 2020 on the request of the applicant.  He was absent.  He did not file any additional evidence.  I thus deal with the leave application on paper.

37.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 duty of the TCAB and the Director.  The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director. 

38.In substance, the adjudicator disbelieved the applicant.  He was not persuaded that the applicant would be subject to ill-treatment in future given the overall evidence.

39.In my judgment, there is no error of law or procedure.  The decisions are reasonable.

Conclusion

40.The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 13^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