Case Document

100%Judiciary

HCAL 179/2019

[2021] HKCFI 2514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 179 OF 2019

BETWEEN

	Akhand Shimul	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 illegally on 9/12/2012. He was arrested by the police on 5/4/2014. He filed the present non-refoulement claim on 7/4/2014. [1]

Background

2.The applicant was born on 27/1/1992 in village Durbati, Gazipur, Bangladesh. He had education up to class 8 level. He was single. His family was in Bangladesh. He was unemployed in Bangladesh. He became a supporter of “BNP” [2] around 2007. He had assisted his friend Momen in the activities of “BNP”.[3] He was well known for his close affiliation with Momen and the “BNP” in the neighbourhood. He believed that he would be groomed to be a “BNP” leader.

3.In 2002, his father purchased a plot of land. His family and his uncle’s family (“Faruk”) lived together. The two families shared the produce from the land. In 2007, his father passed away. “Faruk” worried that he could no longer claim a share of the land [4]. He asserted that “Faruk” used the land dispute as an excuse to eliminate him.

1^st incident

4.Around March 2010, “Faruk” attended a meeting about the land at his home. “Faruk” came with eight “AL” [5] people. At that time, “Faruk” was the secretary of “AL”. During heated arguments, “Faruk” and his group assaulted him, his mother and his brother with sticks. He had bruises all over his body. He stayed in the hospital for 2 days. It took him 20 days to recover. His mother reported to the police. He did not know if there was any investigation. He had not complained further as the police was influenced by the “AL”.

5.He asked the “BNP” and Momen’s father [6] for help. He was advised to avoid the “AL” people. He went to Chittagong to stay away from “Faruk”. He was safe there. His mother and brother stayed at home without any problem.

2^nd incident

6.Ten months later, he returned home to visit his mother. There was a discussion with “Faruk” on the land dispute again. During some arguments, “Faruk” slashed him with a knife. He was hospitalized for 29 days treating his inflamed wounds. His mother reported to the police but there was no follow up. He believed that the police were affiliated with the “AL”. They would only help the rich and the powerful.

7.He was in constant fear of attack. In March 2011, he went to stay with his friend at Gazipur. He was safe there for more than a year. He left Bangladesh on 4/12/2012 to China. He did not apply for protection in China.

8.He did not think internal relocation was possible as “Faruk” and the “AL” would be able to locate him. The police were corrupt. The land dispute was ongoing however his father was still the legal owner. His mother remained at home. She was safe. His brother had already left home.

The decision of the Director

9.The Director found that the risk of harm was low. The reasons were as follows:[7]

a. The land dispute was a private matter. There was no government involvement. There was no evidence that the “AL” was behind the attacks by “Faruk”. The applicant was only assisting his friend Momen in organizing the activities of the “BNP”. He was only a supporter of the party. It was not reasonable for “Faruk” to worry that the applicant might become a leader of the “BNP” in future.

b. The applicant was assaulted twice during heated arguments about the land. Despite the injuries, he recovered in several weeks. The evidence did not support any intention to kill him despite ample opportunities. In any event, the injuries did not amount to ‘a minimum level of severity’.

c. He sought assistance from the “BNP” but of no avail. This cast doubt on the assertion that he was groomed to be a leader. In fact, he was never assigned any significant role in the “BNP” during that time. There appeared no reason for the “AL” to target him. Nor was there any reason for the “AL” to be involved in the land dispute.

d. He had never tried to seek help from higher level police or public authorities. There was no evidence that the government fail to provide appropriate protection if they had knowledge of the incidents.

e. The Director accepted that there were serious problems of corruption, inefficient investigation and political influence of the police. There were human rights problems too. However, the government had taken steps to enhance police professionalism and tackle corruption. The Police Reform Programme was underway to enhance crime prevention and accountability. The Anti-Corruption Commission was set up to fight corruption. There were news reports about punishing corrupt officers and leaders of political parties. As a whole, there was evidence that the Bangladesh government was capable of protecting citizens.

f. The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country. The population was about 170 million. There was no evidence that “Faruk” had attempted to locate him. Given his age and education, he should be able to relocate to Gazipur, Dhaka or Chittagong. It was not unduly harsh. In fact, he was safe while staying in Gazipur and Chittagong.

10.The Director rejected all claims on 4/1/2016 and 26/6/2017 [8]

The decision of TCAB

11.The applicant attended a hearing on 10/12/2018. The adjudicator concluded that the applicant was not truthful. She rejected that there was a land dispute. She rejected the ensuing incidents. She did not accept he was involved in the activities of the “BNP”:

a. The applicant was inconsistent about his membership of the “BNP”. In his NCF, he even said he could produce a list to prove his membership. In the hearing, he told the adjudicator that he was just a supporter. His explanation was unsatisfactory and indicated that he had exaggerated.[9]

b. The applicant explained that he did not join the “BNP” earlier as he had to start from a low level and moved up the hierarchy. This was contradictory to the COI which set out a formal process for joining the party. This appeared more inexplicable as he indicated that he loved the “BNP” when he was very young.[10]

c. The applicant was vague in describing his duties when he associated with Momen or some members of the parliament. He finally told the adjudicator that he was responsible for overseeing the contracts on road construction in 2010-2011. The contracts were assigned by the government. He had never mentioned that before.[11]

d. The applicant could not explain to the satisfaction of the adjudicator what he did in organizing the rallies. He basically persuaded people to attend. He did nothing but follow Momen. The adjudicator opined that he was evasive, lacking details and unconvincing. It reflected badly on his credibility. The adjudicator doubted his involvement.[12]

e. The applicant was unable to describe the flag of “BNP” to the adjudicator. This substantially affected his credibility.[13]

f. He told the adjudicator that “Faruk” wanted to divide his father’s land to 3 portions, however, in his NCF, he said “Faruk” wanted half of the land. He could not explain the inconsistency.[14]

g. While the applicant maintained that his father was the legal owner of the land, he also admitted that according to the law, the land should be inherited by his mother and all children on the death of his father. His evidence in this respect was confusing and inconsistent.[15]

h. He was inconsistent as to the cause of death of his brother. He claimed that his brother was killed by the “AL” members in the written representation [16] but in his NCF, he said his brother died of heart attack during an argument with “Faruk”.[17]

i. He told the adjudicator a different version of facts in relation to the both incidents of attack. He had no explanation. The 2 photos submitted by the applicant, allegedly showing his scars, could not take his case any further. [18]

12.The adjudicator concluded that there was no real risk that the applicant would be killed if he returned to Bangladesh.

13.The adjudicator rejected his claim on all grounds on 11/1/2019. [19]

Judicial review

14.The applicant filed the leave application for judicial review on 18/1/2019. In the Form 86 and his affirmation, he complained on several aspects. They are summarised as follows: (1) the appeal bundle was served a few days before the TCAB hearing, he could not understand the documents which were in English. He could not afford an interpreter. (2) The COI consisted mainly of hearsay and outdated. (3) The BOR 2 claim was not assessed by the Director. (4) There were other sources which the TCAB should consider. (5) He had no legal assistance before the TCAB.

15.This court fixed a hearing on 26/7/2021. The applicant had nothing to update. He had no complaint against the Director or the TCAB.

16.In relation to (1), the most important document in the bundle should be the decision of the Director. It was sent to the Duty Lawyer Scheme on 4/1/2016. I am sure the DLS had translated the decision to the applicant. As to the NCF and the screening interview before the Director, the applicant was assisted by the DLS in compiling the NCF. There was interpreter service during the screening interview. I do not accept that the short notice would give rise to unfairness. There was an interpreter during the TCAB hearing. The applicant should be able to follow the proceedings.

17.The Form 86 and the affirmation were in typewritten English. This indicated that he was able to find language assistance. There was no duty on the Director or the TCAB to provide language assistance at all stages.

18.In relation to (2), the COI concerning the situation in Bangladesh mainly came from the United States Department of State, Transparency International and the UK Border Agency. They are mainly from the year 2015. They are State agencies and reliable organisation collecting information through diplomatic channels. The information provided was highly relevant in assessing the situation in Bangladesh.

19.The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 4/1/2016. The adjudicator had put the relevant links in the footnotes of her decision. Had there been any dispute, the applicant should have sufficient time to raise it during the hearing with the TCAB on 10/12/2018 or this court on 26/7/2021.

20.In relation to (3), the BOR 2 claim was assessed and rejected by the Director on 26/6/2017. The decision was sent to the address recorded in his NCF and the Form 8 dated 27/4/2014. That should be the most updated address then. The adjudicator was fully aware of it.

21.In relation to (4), in his Form 86 dated 18/1/2018 [20], the applicant mentioned 3 sources in 2010-2011 which he claimed would show the human rights circumstances in Bangladesh. In my view, the relevant time is the time of the assessment before the TCAB. Secondly, a general situation of violence is insufficient, there must be personal risk of torture, BOR 2, BOR 3 or persecution. It is incumbent on him to specify how the sources are relevant. In my view, these 3 cites cannot take the applicant’s case any further.

22.In relation to (5), a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[21] The applicant had legal assistance in presenting his case to the Director. He had ample chances to give evidence and answer questions before the TCAB. In fact, he had no complaint against the procedures in the TCAB. I do not find any unfairness even though he was not represented before the TCAB.

23.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 duties of the TCAB and the Director. In general, this court would not interfere.

24.I agree with the findings of the adjudicator. The applicant is not truthful. His evidence was vague and sketchy. It is unconvincing given that he claimed to be working with the “BNP” for many years. The adjudicator is correct to reject the factual basis of his claim. Having done so, there was no need to go into the detail components of each ground separately.

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

Conclusion

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

Dated 26^th day of August 2021

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 August 2021 Akhand Shimul Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 August 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2931/16/1/54/B383 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1143/15 & RBCZ 9002172/17 (Formerly RBCZ/1850/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] There were two screening interviews (9/9/15 & 23/9/15) adjourned because the applicant was sick. He was invited to make written elaboration which he did on 6/10/2015 through the DLS. The last screening interview was held on 25/11/2015.

[2] Bangladesh Nationalist Party.

[3] Momen was the organising secretary of the “BNP” in his home area.

[4] The land was in his father’s name.

[5] Awami League.

[6] Momen’s father was chairman of the Union Council in the home area.

[7] Decision of the Director dated 4/1/2016, §§21—29.

[8] The decision on 4/1/2016 concerned BOR 3, persecution and torture risk. The decision on 26/6/2017 concerned BOR 2. On the latter, the applicant did not file any further information despite an invitation by the Director.

[9] Decision of the TCAB dated 11/1/2019, §§26—31.

[10] Decision of the TCAB dated 11/1/2019, §§26—31.

[11] Decision of the TCAB dated 11/1/2019, §§38—41.

[12] Decision of the TCAB dated 11/1/2019, §§42—46.

[13] Decision of the TCAB dated 11/1/2019, §§47—56.

[14] Decision of the TCAB dated 11/1/2019, §§59—61.

[15] Decision of the TCAB dated 11/1/2019, §§62—68.

[16] Dated 7/4/2014. It was compiled when he first lodged his claim.

[17] Decision of the TCAB dated 11/1/2019, §§69—70.

[18] Decision of the TCAB dated 11/1/2019, §§71—81.

[19] Decision of the TCAB dated 11/1/2019, §§92—108.

[20] Pages 17-18