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

HCAL 1612/2019

[2021] HKCFI 270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1612 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 was refused entry to Hong Kong via Macau on 26/10/2009. He lodged a torture claim on the same day. When the USM came into operation in 2014, his torture claim was taken as a non-refoulement claim.

2.The present claim was initially considered on Torture risk, BOR 3 risk and Persecution risk. The Director further considered the BOR 2 risk in April 2017.

Background

3.The applicant was born on 27/2/1982 in Aut Shahi, Munshigonj District, Bangladesh. He attained class 6 level. He was single. He was a Muslim. His parents and siblings lived in Bangladesh. His family were all supporters of the Bangladesh Nationalist Party (‘BNP’).

4.About 2006, he established a garment business in the home district.  He was appointed the publicity secretary of the youth wing of BNP from 2002—2004. He campaigned for the leaders of BNP.

5.About January 2007, his friend (‘Munir’) had a land dispute with a Hindu family. It developed into a fight. Some BNP supporters joined his side. Some Awami League supporters joined the opposite side.

6.One week after the fight, someone throw acid on a female member of that Hindu family. The Hindu family filed a report accusing him and two friends of the attack. He immediately fled to Kishoreganj. His friends were arrested by the police. The police could not locate him. He stayed at different districts for over a year.[1] He was safe.

7.Around February 2008, after visiting his parents, he went to Dhaka. He changed lodging every 4—5 days to avoid detection in Dhaka. He was safe.

8.In 2009, he learned that the charge against his friends were dismissed. He then returned to his father and stayed for one week. He was in fear of the Awami League (‘AL’) supporters. He decided to stay at Dhaka.

9.Later in 2009, Barek demanded his family to pay 2 million takas or else Barek would kill him. Barek was once a district secretary of AL. His father reported to the police who refused to register the complaint. Barek even damaged the kitchen of his house and threatened to kill him. His father turned to another police station but in vain. He thought the police were corrupt and only work for the ruling party. However, Barek and his group did not harm his family.

10.Around August 2009, he returned home to visit his sick mother. He was arrested by the police at the bus station. He was taken back home. The police searched his home and found a revolver. He was detained and assaulted by officers with batons and kicks. He suspected that it was Barek who framed him up. He was granted bail in October 2009 after being detained for 2 months. He did not complaint about the police brutality as it was useless.

11.On the advice of his father, he left Bangladesh by air on 25/10/2009. He bribed the immigration officer at the airport. He arrived at Hong Kong the next day and lodged a torture claim with the assistance of his lawyer.

12.In Hong Kong, he contacted his father who told him the local police came to look for him at home. The AL supporters also vandalized his home. He had stopped contacting his father since mid-2013.

13.He thought the police would not help. The government authorities would not help too. He could not complaint. He would not have a fair trial as AL was in power. He could not relocate to Dhaka or any other part. AL was in power and would inflict harm to BNP members.[2]

14.He was in fear that Barek and AL members would harm or kill him if he returned to Bangladesh. He was also in fear of the false charge for possession of an illegal firearm against him.

The decision of the Director

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

a.  In relation to the acid throwing case arising from a land dispute, the case had been dismissed. This demonstrated that the court was upholding justice. There was no further risk of harm.

b.  Barek was once a secretary of AL. There was no evidence that the extortion of money was instigated by the State or public official.  As to the frame up, there was no evidence that it was instigated by AL or the State. Barek and his group could not use resources of AL to locate the applicant.

c.  Barek and his group had never inflicted any harm to the applicant’s family albeit that the applicant’s family were all supporters of BNP. There was only verbal threat to kill. This showed that there was no intention of causing serious harm to the applicant and his family.

d.  The applicant was only a low ranking publicity secretary in the youth wing of BNP long time ago. It was not reasonable that he would face any risk of harm.[3]

e.  As for the firearm charge, the warrant was issued because the applicant jumped bail. There was no evidence that the he would not have a fair trial. The acid throwing case was a good example that courts in Bangladesh would uphold justice. The alleged frame up by Barek was pure speculation of the applicant.

f.  As to Barek’s extortion of money, the misconduct of a police officer at a local police station could not represent the attitude of the police in general. There was no evidence that the State was unable to investigate or punish criminal conduct.

g.  The applicant and his father chose not to report some of the incidents. It could not be used as a proof that the Bangladesh authorities would generally demand bribe or refuse to help.

h.  The applicant speculated that the police would not assist as AL was in power. Having considered various COI, the Director acknowledged that there were politically motivated violence and inter-factional attack on BNP by AL in Bangladesh. Although there was a functioning criminal justice system, its effectiveness was undermined because of corruption, ineffective police and lack of resources. There were also human rights violations. However, there were police reform programs to enhance police performance and tackle corruption. Institutions such as the Counter Intelligence Unit and Anti-Corruption Commission were set up. The Bangladesh government was capable to protect citizens against corruption, abuse of power and interference by politicians.[4]

i.  The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country and the population was over 160 million. Given his age and background, he should be able to relocate to Dhaka.

j.  The documents submitted by the applicant could not take his case any further.

16.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. There was no genuine and substantial risk of ill-treatment. BOR 3 claim failed.

17.The extortion by Barek was of private nature. The applicant was a low ranking member in BNP. It was unlikely that AL members would target him for attack. There was no real risk of persecution under the Convention. Persecution risk failed.

18.There was no evidence that the Bangladesh government had instigated, acquiesce or consent to the acts of Barek and AL members. There was reasonable State protection. There was reasonable relocation option. There was no torture inflicted on the applicant within the definition under s.37U of the Immigration Ordinance. The torture claim failed.

19.The Director rejected the above claims on 26/8/2015.

20.The Director invited further submission on BOR 2 risk in April 2017. The applicant did not respond. The Director considered the existing evidence and concluded that there was no arbitrary deprivation of life. BOR 2 failed. The Director rejected this claim on 26/4/2017.

The decision of TCAB

21.The applicant attended a hearing on 16/8/2016 before the adjudicator. The adjudicator pointed out the following aspects of the applicant’s evidence which were vague and unreliable:

a.  The land dispute was a private grudge. There was no evidence that it was instigated, authorized or acquiesced by the State. The applicant was able to avoid arrest for over a year in Dhaka after the land dispute and the acid throwing case. [5]

b.  In relation to the extortion by Barek, the adjudicator pointed out that there was no detail about the officer who refused to register the complaint by the applicant’s father. His father did not complaint to a higher level officer. This bare assertion was insufficient to support passive acquiescence. In fact, Barek had never assaulted the applicant or his family.[6]

c.  The adjudicator doubted the assault of the applicant by the police in the possession of illegal firearm case. There was no detail whatsoever of the date of assault, rank of the officers and medical report. He had not complained to any authority about this brutality.[7]

d.  The applicant produced a charge sheet and a warrant of arrest which showed that he was a suspect of the possession of illegal firearm case. The adjudicator opined that the applicant was a fugitive of justice. It was for the Bangladeshi court to determine the charge. The applicant was not entitled to non-refoulement protection.[8]

e.  The adjudicator pointed out that relocation would not be relevant consideration for a fugitive from the law. However, in relation to the alleged threat from Barek, the adjudicator agreed with the Director that there was reasonable option for relocation. The adjudicator pointed out Dhaka, Chittagong, Khulna, Rajshahi and other cities were reasonable options.[9] Barek and the AL supporters would not have the resources to locate the applicant. In fact, he was safe for about 19 months before leaving Bangladesh. It was not unduly harsh for the applicant. [10]

f.  The adjudicator pointed out that relevant COI showed that there were steps taken by the Bangladesh government to improve police professionalism, discipline and reduction of corruption. Civilian authorities had effective control over the armed forces and the government had mechanism to investigate and punish abuse and corruption. The Police Internal Oversight unit was set up. There were actions taken against the police and politicians, be it BNP or AL, for criminal activities.[11]

22.In addition to the above findings, the adjudicator found that there was no severe pain or suffering, physical or mental, amounting to a minimum level of severity. There was no substantial ground to believe a future real risk of harm. Torture risk failed.

23.In addition to the above findings, for BOR 3 claim, the adjudicator pointed out that the applicant had not suffered severe injury or CIDTP. There was reasonable State protection and relocation options. There was no substantial ground to believe he would face a real risk of ill-treatment. BOR 3 claim failed.[12]

24.In addition to the above findings, the adjudicator reiterated that it would be safe for the applicant to relocate to other cities of Bangladesh. There was no ill-treatment launched under any category of the Refugee convention. The applicant would not be under a real risk of persecution. [13]

25.For BOR 2, the applicant appealed against the Director’s decision on 12/5/2017. In his notice of appeal, the applicant repeated the facts of his claim. There was no significant additional evidence. The adjudicator opined that there was no need for another oral hearing. Having considered the existing material, the adjudicator concluded that the applicant did not establish any BOR 2 risk.[14]

26.The adjudicator rejected the applicant’s claim on 2/3/2017 and 31/5/2019.

Judicial review

27.The applicant filed the leave application for judicial review on 13/6/2019. In his affirmation in support, he pointed out that the adjudicator was unreasonable not to fix an oral hearing for his appeal on the BOR 2 claim. The Director had not truly considered his claim. He also complained that the lawyer from the DLS could not understand his case and not helpful. He could not understand the appeal bundle. He mentioned that his younger brother had disappeared in January 2017. He alleged that it was due to the action of the Bangladesh government and the AL people.

28.This court fixed a hearing on 1/12/2020. The applicant confirmed that he had submitted all evidence and have nothing further to update. He did not know the progress of the possession of illegal firearm case. He dared not asked. He maintained that he was not guilty. In his opinion, it was a false case. There was no guarantee of safety in Bangladesh. There was recent killing by the police.

29.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.  In general, this court would not interfere.

30.The adjudicator had considered the written submission by the applicant before deciding whether to hold an oral hearing for the BOR 2 claim. Given that the applicant had only repeated the same background as he did initially, coupled with the fact that there was an oral hearing on 16/8/2016, I agree with the adjudicator that there was no need for an oral hearing in relation to the appeal of the BOR 2 claim.

31.For the complaint against the DLS, the applicant was assisted by a lawyer from the DLS in compiling the NCF and submitting relevant documents. All the content was translated to him by an interpreter. He signed to confirm its accuracy. [15] The applicant did not give any detail why his lawyer was not helpful. I do not accept this complaint.

32.The Director had considered his claims based on the NCF and the screening interview. The Director had given detailed reasons. I do not accept that the Director had not truly considered his claim.

33.I understand that the appeal bundle consisted of his NCF and documents submitted by him. Besides, the most important document was the decision of the Director. Under normal circumstances, that decision was translated to him by the DLS. Most of the other documents in the appeal bundle were translated to him at the time of compilation. I do not accept that he could not understand the appeal bundle.

34.The applicant mentioned that his younger brother had disappeared in January 2017. This happened after the assessment by the Director and the TCAB. It is inappropriate for this court to consider this incident at the leave application. In any event, there was little detail. It is a bare assertion and difficult for any court or the lower tribunals to deal with it.

35.As to the possession of illegal firearm charge, the documents submitted by the applicant show that the judicial proceedings had commenced and handled by the Bangladeshi court. The arrest warrant was issued formally as the applicant failed to appear on the date of the hearing (10/12/2009). While the applicant maintained that it was a fabrication, the documents show that the charge was formally laid. The fact that the applicant maintained a not guilty stance cannot support his claim that it is a fabrication. It is a matter to be determined by the Bangladeshi court.

36.In my judgment, there is no error of law or procedure. The decisions of the TCAB and Director are reasonable.

Conclusion

37.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