Anowar Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1607/2019

[2021] HKCFI 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1607 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 oral submissions by the Applicant 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 on 24/10/2005 with a valid passport. He overstayed since 8/11/2005.  He was arrested by the police on 25/12/2006.  He claimed to have lost his passport.  He applied for torture claim on 29/12/2006[1] which was rejected by the Director on 25/3/2011.  His appeal to TCAB was dismissed on 21/7/2011.

2.The applicant filed this non-refoulement claim on 10/3/2014.  It was refused by the Director on 9/8/2018.  His appeal was dismissed by the TCAB on 27/5/2019.

3.The applicant was in fear that the AL supporters would harm or kill him if he returned to Bangladesh.  There was also a false case filed against him.  The present claim would only be considered on BOR 2, BOR 3 and persecution risk grounds.

Background

4.The applicant was born on 10/9/1977 in Ward 58, Hajaribag, Kalunagar, Dhaka, Bangladesh. He received education for 9 years.  He was single and ran a leather shoe business from 1996—1999.  He was a Muslim.  He supported the Bangladesh National Party (‘BNP’) since 1998. He became a member of BNP in 2000.  He arranged meetings, managed the club and attended rallies.

5.There was a BNP club in his home area since 1981.  It was a social welfare organization for holding BNP gatherings and consultations with leaders.

6.In March 2001, about 9 members of Awami League (‘AL’) came to the club and damaged some properties.  An argument ensued.  He noticed Ibrahim and Ismail were among them.  They were local gangsters and powerful AL affiliates.

7.In 2001-2002, he campaigned for a leader of the club, Pintu, who later won the election and became a member of the parliament.[2]

The 1^st incident [3]

8.The residents at his home area were mostly AL supporters.  They were angry at the applicant for joining the BNP.  They tried to force him to change allegiance to AL.

9.In May 2001, Ismail slapped his face when he refused to support AL.[4] Ismail threated to shoot him if he went to the BNP club.  He stayed at home for a few days to avoid trouble.  His mother told him not to report.

The 2^nd incident [5]

10.One day in June 2001, when he was walking with some BNP members on the road, they witnessed some AL supporters from his home area[6] attacking Iqbal’s car with hockey clubs and iron rods.  Iqbal was the brother of Ibrahim and Ismail.  Bombs were fired.  The applicant and his friends managed to escape.  Iqbal suspected that the applicant and his friends were involved.

11.Two weeks later, Ibrahim and Ismail attacked him.  There was a fight and he injured his leg.  He was treated by a doctor at the local pharmacy.  It took him 3 weeks to recover.

12.He did not report the incident to the police on the advice of the BNP club leader (‘Aman’) who would look into the matter.  Another reason was that Iqbal had already reported the incident to the police accusing him of the attack.  The tension between him and Ismail escalated.

13.In February 2002, he was selected by Moju[7] as one of the general secretary of the BNP club.  The other general secretaries had problems with AL.  Two of them had left Bangladesh.

14.Later, he and his friend (‘Rajon’) left his home area and stayed at Gojomahal for several months to avoid attack.  His mother informed him that the AL people looked for him at his home.  Meanwhile, he stayed at different districts including Silashi and Mymensingh until August 2005.

15.During that time, he learned from his youngest brother (‘Noor’) that one of the AL leaders was murdered in 2003.  In 2004, his youngest brother was slapped by Ibrahim and Ismail who threatened to kill the applicant.  His youngest brother also supported BNP.

16.After August 2005, he stayed in Chittagong District for 2 months before leaving Bangladesh on 11/10/2005. He encountered no problem.

17.He did not report to the police as the other party had filed a false case against him.  He thought the police would not help him.  His elder brother told him that he was on the wanted list of the police. In 2007, he was told that the Rapid Action Battalion (‘RAB’) was looking for him at his home.  He confirmed that he had not encountered the police or RAB before leaving Bangladesh.  He had not heard of complaint channels such as Bangladesh Police Internal Oversight or the National Human Rights Commission.

18.He insisted Iqbal and his party would be able to locate him anywhere in Bangladesh.

19.He had contacted his mother after coming to Hong Kong.  His mother told him that Ibrahim and Ismail had been causing trouble to his family.  They tried to force her to sell the family house.  His brother (‘Monir’) was arrested by the police and imprisoned for affiliating with BNP.  Senior BNP leaders told him not to return to Bangladesh before the 2019 election.  He heard many BNP members were framed up for drug charges or killed by AL supporters.[8]

The decision of the Director [9]

20.The Director found that there was no real and personal risk of harm from AL supporters for the following reasons:

a.  The applicant had inaccurate information about the political situation in Bangladesh.  He was wrong about Pintu’s constituency (‘BNP leader’).  He was not clear about the circumstances of the death of Pintu.  He was wrong about the situation of Moju and the 2 sons of president Zia.[10]

b.  During the 2 incidents, the applicant was not seriously injured. It did not amount to ‘a minimum level of severity’.  The death threat from Ismail and his gang was only verbal. Given the circumstances of the encounters, there was no evidence that they had the intention to kill him.

c.  There was no evidence to support the applicant’s claim that the case filed against him by Iqbal was a false case.  In the circumstances, the inquiry made by the police was within their duty.

d.  The applicant chose not to report the incidents to the police.  It is not the case that the police refused to assist or acquiesce the criminal conduct of Ismail and his gang.

e.  He left his home area before or about the same time when Moju appointed him as one of the general secretary.  There appeared no reason for Moju to do so.

f.  The applicant as well as two general secretaries had been attacked by the AL supporters, his acceptance of the appointment as general secretary of the club showed that he was not afraid staying active in BNP.  He was not in fear of being harm.

g.  The applicant was safe after he left his home area around 2002 and stayed elsewhere until he left Bangladesh in October 2005. The AL supporters could not locate him. Their influence was localised.

h.  The treatment of his brothers and mother by the AL supporters, the police and the RAB action were mainly hearsay.  The fact that he was put on the wanted list was also hearsay.  His family members chose not to report to the police.  It was not the acquiescence of the police.

i.  He could leave Bangladesh without problem.  He was not targeted.  This weakened the claim that he was on the wanted list.  Further, there was no evidence that he would not face a fair trial if arrested for the alleged false case.

j.  Having reviewed relevant COI, the Director acknowledged that there were corruption, political influence of public officials and police abuse of power in Bangladesh.  There was a feeble judiciary.  The government had taken steps to enhance police performance and tackle crimes committed by the police and AL politicians.  The Police Internal Oversight unit was set up to monitor police activities.  There was legal aid available to poor litigants.  The National Human Rights Commission was set up for human rights protection.  As a whole, the Bangladesh government was able to protect citizens against corruption, abuse of power by the police.  There was no evidence of failure on the part of the Bangladesh authorities to exercise due diligence.

k.  Bangladesh was a large country with population up to 160 million.  The law allowed freedom of movement within the country. Khulna and Chittagong region were the possible alternatives.  Given his age and background, he should be able to relocate to Chittagong or Khulna.  It was not unduly harsh.

21.The ill-treatment to the applicant by Ismail and his gang did not amount to “a minimum level of severity”.  The risk of harm was low.  There was no evidence of State involvement.  There was reasonable State protection and relocation opportunities.  BOR 3 claim failed.

22.Given the evidence above, the applicant also failed to establish arbitrary deprivation of life if he returned to Bangladesh. BOR 2 failed.

23.Given that the cause of the incidents was not related to religion or politics, there was no real risk of persecution under the Convention.  There was reasonable State protection and relocation options. Persecution risk failed.

24.The Director rejected all claims on 9/8/2018.

The decision of TCAB

25.The applicant attended a hearing on 20/3/2019 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 initially claimed that he was the general secretary of the BNP in his home area.  Later at the hearing he said he was the general secretary of a BNP social services association and club.  The adjudicator doubted whether he held an official role.

b.  The applicant could only give a vague account of the reasons for supporting the BNP.  He was also vague on the BNP policies.

c.  The applicant was unable to explain his appointment as general secretary and his hiding in Gojomahal about the same time.  He could not exercise his role as general secretary while in hiding.

d.  The applicant was unable to explain why AL supporters would attack Iqbal.  The latter was also an AL member.  His explanation was evasive, confusing and incoherent.  The adjudicator doubted the applicant’s account of the incident.

e.  The applicant was unable to explain the events after the 2^nd incident.  He later changed his evidence that he hid himself in other unspecified places before leaving his home area.

f.  If there was a false case filed in 2001, the adjudicator found it unbelievable that the local police in Bangladesh still looked for him in 2017 according to his mother.

g.  The applicant had delayed for over 12 months before filing his torture claim in 2006.  This was inconsistent with his genuine fear for safety in Bangladesh.  At the time of his arrest, he was in possession of an asylum certificate belonging to another person.  He must be aware of seeking asylum mechanism in Hong Kong.

26.The adjudicator did not accept that the applicant left his home area and went into hiding because he was wanted by AL members or the police.  His hiding was not due to his activities on behalf of the BNP.  His evidence was disingenuous and untruthful.  The adjudicator rejected his story and the associated events.

27.For BOR 3 claim, the adjudicator did not accept that the applicant was assaulted or threatened by AL members.  There was no false charge laid against him. 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 CIDTP. BOR 3 claim failed.

28.Similarly, for BOR 2 claim, there was no evidence that the applicant would face a risk of arbitrary deprivation of his life.  This ground failed.

29.For persecution risk, the adjudicator rejected that the applicant was associated with the BNP.  She did not accept that the applicant left Bangladesh because of political differences with AL.  His fear of harm due to political reasons were not well-founded.  There would not be a real risk of persecution.

30.The adjudicator rejected the applicant’s claim on 27/5/2019.

Judicial review

31.The applicant filed the leave application for judicial review on 13/6/2019.  In his affirmation, he pointed out that the adjudicator did not give him an opportunity to keep forward his submission.  He was not invited to submit written submission even if there was no oral hearing.  The TCAB relied on unreliable sources which were hearsay in nature.

32.A hearing was set on 1/12/2020 on the request of the applicant.  He repeatedly stressed that the political problems in Bangladesh were still alive. He could not go back. However, he confirmed that he was allowed to give evidence before the TCAB in the hearing on 20/3/2019.  He answered questions from the adjudicator.  He was assisted by an interpreter.

33.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 specified any error in the decision of the TCAB. 

34.In her decision, the adjudicator set out the evidence of the applicant, given at various occasions, in great detail.  She analyzed the evidence and pointed out important aspects which cast doubt on the credibility of the applicant.  She disbelieved the applicant’s reasons for leaving Bangladesh. She was not persuaded that the applicant would be subject to ill-treatment in future given the overall evidence.  There was no need for her to consider the COI for State protection or relocation.  Those issues do not arise.  The criticism raised in the applicant’s affirmation is groundless and out of context.

35.In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.

Conclusion

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

Dated 9^th day of February 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