Bokul Miah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1613/2019

[2021] HKCFI 1809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1613 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 left Bangladesh for China on 14/9/2007.   He stayed in China for about 8 weeks.  He entered Hong Kong illegally from China on 7/11/2007. He was arrested by the police on the same day.  He lodged a torture claim on 29/11/2007.  The claim was rejected by the Director on 29/1/2014.  He filed the non-refoulement claim in this case on 19/3/2014. [1]

Background [2]

2.The applicant was born on 22/12/1979 in Chanderkandi, District Narsingdi, Bangladesh.  He had education up to class 5.   He was married with 4 children.  His family was in Bangladesh.   His parents had passed away.  His siblings lived in Bangladesh.   He was a farmer from 1991—2006.  He operated a business selling fertilizer in the native village from 2004—2007.

3.He joined the Awami League (AL) in 1996.   At that time, Bangladeshi Nationalist Party (BNP) was in power.  In 2003, he was appointed the publicity secretary of AL in his village.  He was responsible for promoting the AL and organized meetings.  He was involved in the activities of AL about 14 times a month.

4.On 13/5/2007, 25 BNP people rushed into his shop and attacked him with sticks.   One of them threatened to kill him if he continued the activities with AL.  He recognized 5 of them who were fellow villagers.  He managed to escape immediately.  He did not know what happened to his shop.   He recovered in about 4 days by taking painkillers.   He heard from his wife and brother that Tazul (T) was behind the attack.   T was the chairman of the BNP in the village.

5.On 17/5/2007, he was stopped by 9 BNP people on his way to the police station.   They told him not to report to the police or else they would kill him and harass his family.   He ignored them and left.   His wife dissuaded him from reporting the attack.

6.He left the home village for his safety.  He stayed with his cousin for a few days then move to his brother-in-law at Mahmud Pur for 15 days.  He finally moved to his brother-in-law at Akhali of Sylhet District until he left Bangladesh in September.  He was not located and safe at Sylhet District.  His wife told him that T came to his home asking about him.

7.During the time he was away from his home village, he requested the chairman of AL in his village to have a meeting with T and those perpetrators.  However, none of them attended despite several attempts.  He knew he was not the only AL people attacked by the BNP people.  However, the chairman of AL was never attacked.

8.He arranged through an agent to leave Bangladesh for China in September 2007.  He had no problem in applying for a passport and left Bangladesh smoothly.

9.He had no resources to relocate with his family to other cities.  The BNP was influential over the whole of Bangladesh.  He had no alternatives for relocation.  He did not think the police could protect him round the clock.  However, he had never encountered any problem with the police or any public authorities.

10.He had contacted his family recently.  His wife told him the BNP people still asked about him.  They refused to negotiate with his son.  The BNP people in the vicinity of his home village were dangerous despite the AL were in power.

11.He was in fear that the BNP people would harm or kill him if he returned to Bangladesh.

The decision of the Director

12.The Director found that there was low risk of harm from the BNP people for the following reasons:[3]

a.  He was only attacked once on 13/5/2007.  It was not serious.   He was able to remain safe if he stayed away from the home village.   He was not attacked further despite some verbal threats.  This showed that the risk of attack was not imminent.  The injuries did not amount to ‘a minimum level of severity’.

b.  There was no evidence that T was behind the attack.  It was just hearsay.  There was also no evidence that the BNP was behind the attack of some AL members in his home village.

c.  He was just a low ranking member of the AL.  There was no reason that the BNP would have a continuous interest in him.  This was particularly so when the alleged incidents took place 9 years ago.

d.  There was no public official involved in those incidents.  There was no evidence of consent, instigation or acquiescence by any government officials.  He was not targeted by the government.  He was able to leave Bangladesh smoothly.

e.  The applicant speculated that the police would not assist him.  The Director acknowledged that the police were influenced by the ruling party.  There were political interference and human rights violations.  The police were corrupt and incompetent.  However, there were police reform programs to enhance police performance, tackle corruption, improve access to justice and observe human rights.  The PIO[4] unit was established to monitor misconduct.  There were channels for complaint against the police for failure to provide assistance.  The Bangladesh government was able to protect citizens against corruption, abuse of power and interference by politicians.  The Director concluded that there was reasonable State protection.

f.  Bangladesh was a large country.   The population was about 156 million.  There was no evidence that T and the other BNP people were able to locate him all over Bangladesh.  He was safe staying with his brother-in-law. This indicated that their influence was localised.  Given his age and background, it would not be unduly harsh for him to relocate to Dhaka or Sylhet.

g.  The letter issued by the Panchayet [5] could only support that a meeting would be held to solve his problem with the BNP people.  The letter could not advance his assertions.

13.The Director rejected the claim on all grounds on 22/2/2017.[6]

The decision of TCAB

14.The applicant attended a hearing on 9/11/2018 before the TCAB.  The adjudicator pointed out the following reasons which indicated that the applicant did not face a real risk of harm if he returns to Bangladesh:[7]

a.  The relevant COI indicated that the number of individuals affected by political violence remained low.  The majority of the violence appeared to have been against the BNP and Jatiya Oikya Front.

b.  According to the updated situation in Bangladesh, the AL had won the national election in December 2018.  It was the third consecutive win in 2008 and 2014.  The AL candidate in the applicant’s constituency was re-elected.  All these were contrary to the assertion of the applicant.

c.  There was no evidence that the applicant had any direct encounter with T.  Despite the applicant’s assertion that T was ruthless, the adjudicator put very little weight on this assertion.

d.  The applicant had very little involvement in AL.  He indicated that he would not be involved in the activities of AL if he returned to Bangladesh.  It was pure speculation that the BNP had ongoing adverse interest in him.

e.  The adjudicator found that there was reasonable police force and criminal justice system.  They were effective. There was reasonable State protection according to the COI.

15.The evidence of the applicant was speculative.  There was no evidence of any outstanding dispute to be resolved between him and the BNP people.  The adjudicator did not accept that the applicant faced a real risk of ill-treatment or persecution in the reasonable foreseeable future.  The adjudicator rejected his claim on BOR 2, BOR 3 and persecution risk.

Judicial review

16.The applicant filed the leave application for judicial review on 13/6/2019.   In his affirmation in support, he stressed that his life was in danger.  The decision of the TCAB was unreasonable.  It did not take into account many issues.

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

18.The adjudicator had carefully analysed his evidence.   Her findings were logical.  In particular, the updated political situation in Bangladesh contradicted his assertions.  I agree with them.

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

Conclusion

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

Dated 29^th day of June 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