Khan Abdur Rashid and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 630/2020

[2021] HKCFI 2685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 630 OF 2020

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:

1.      Application for leave to apply for Judicial Review be reinstated; and

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong from Bangladesh on 24/5/2015.  He overstayed and surrendered to the Immigration Department on 8/6/2015.  He filed the present non-refoulement claim on 6/8/2015.

Background

2.The applicant was born on 15/1/1952 in Munshiganj, Bangladesh.  He had education up to class 9 level.  He was a Muslim.  He was married.  His family was in Bangladesh.  He was a businessman in garments since 2006.  He travelled a lot for business.  He was a supporter of “BNP” [1] for over 20 years.  He had assisted in putting up posters.  He helped in meetings of “BNP”.  He was targeted by “AL” [2] people.

1^st incident

3.On 31/1/2002, five “AL” people approached him at the Dhaka airport.  They carried pistols.  He had just flown back from South Korea and Hong Kong.  They asked him to stop working for “BNP”.  He refused.  They kidnapped him and detained him for 5 days at Konapara.  He was beaten up with sticks.  He was starved.  He could recognize two of them (DS and RS).[3]  They were from the neighbor village.

4.He was then taken to Noyagao and detained for 5 more days.  One night, he managed to escape while going to toilet.  He walked for one and a half hours, take a ferry and a bus to Dhaka.  He stayed at his friend’s place at Jatravari for about 28 days.

5.He only had bruises.  He took painkillers afterwards.  He recovered in about 10 days.  He did not know much about the background of those men.  He thought he was targeted because he put up posters and helped in “BNP” meetings.

2^nd incident

6.One month later, the same 5 men kidnapped him on a bus.  They did not carry any weapon.  They push him into a taxi.  He was finally detained at Munshiganj for 2 nights.  He was rescued by the police as his wife reported him missing.  He was brought to a judge who gave him a hotline number.  He could dial that number if in danger.  At that time, “BNP” was the ruling party.  He was thus protected.

7.He sustained cuts and bruises.  He had medical treatment afterwards and recovered in about 10 days.

8.Although he had been to Hong Kong for more than 10 times in 2006, he did not seek protection.  The “BNP” was the ruling party then.  He had a normal life.  He did not have any problem in Bangladesh.

9.Since January 2009, “AL” was in power.  They harassed the opposition including “BNP” members.  He had to hide by moving around various places.  He had a very difficult time and decided to leave.  He feared that he would be killed by the “AL” people.

10.He left Bangladesh through normal channel and arrived at Hong Kong on 24/5/2015.  He obtained a visa to Malaysia in March 2015.  He initially planned to explore business opportunities but changed his mind.  He had not applied for protection in China as he did not know there was such a program in China.

11.He thought it was useless to report as the police were corrupt and was controlled by the “AL”.  He did not know anything about other complaint channels.  He did not think internal relocation was possible as the “AL” would be able to locate him through their network.  There were constant identity checks in Bangladesh.  He could be easily located.

The decision of the Director

12.The Director found that the applicant was not credible.  The factual basis of his claim was wholly unbelievable.  His claim could have been rejected for the following reasons: [4]

a.     Despite the two incidents of kidnap and torture in 2002, he only decided to flee his country in 2015.  He had been in Hong Kong for over 10 times in 2006, not only had he not applied for protection, he returned to Bangladesh voluntarily.  His conduct was inconsistent with the asserted fear of risk to his life.

b.     Although he obtained a visa to Malaysia in March 2015, he did not go to Malaysia as there was no business opportunity.  He delayed until May 2015 before leaving for Hong Kong.  This conduct was inconsistent with the asserted fear.

13.For the sake of completeness, the Director proceeded to consider the claim as follows:[5]

a.     The applicant was kidnapped twice in 2002.  He was tortured and starved.  Despite the beatings, he managed to escape through a circuitous route in the 1^st incident.  He was not injured to ‘a minimum level of severity’ in both incidents.

b.     The circumstances of detention indicated that the “AL” people had no intention to kill him.  The asserted fear of risk to his life was far-fetched.

c.     He was only a low ranking member of the “BNP”.  There was no reason that the “AL” members would persistently target him.  In fact, from 2008-2015, he was safe in Bangladesh.  There was no real risk of harm.  There was no involvement of public officials.  He was not targeted by the government.

d.     At the time of assessment, he was away from Bangladesh for more than 3 years.  The hostility against him should have subsided.

e.     Having studied various COI, the Director acknowledged that there were corruption, distrust and political influence of the police.  There were human rights problems too.  However, the government had taken steps to enhance police training and tackle corruption.  Institutions such as the Anti-Corruption Commission and Grievance Redress System were set up to facilitate resolution of grievances.  There were news reports about punishing corrupt officers and members of political parties.  As a whole, there was evidence that the Bangladesh government was capable to protect citizens.

f.     The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was huge.  Given his age and experience, he should be able to relocate to Khulna or Chittagong.

14.The Director rejected all claims on 7/11/2018.[6]

The decision of TCAB

15.The applicant attended a hearing on 7/1/2020.  The adjudicator pointed out the following reasons and concluded that the applicant was unreliable and evasive.  She rejected the factual basis of his claim.  She opined that both incidents of kidnap were fabricated: [7]

a.     The adjudicator pointed out that the applicant had been a member of the “BNP” for over 20 years.  If the “AL” people wanted him to quit the “BNP”, they could have done so anytime earlier in 1995—2002.  The single incident in 2002 was unconvincing.

b.     The applicant was inconsistent as to the number of “AL” people carrying pistols during the 1^st incident.  He said ‘one of them carried a pistol’ before the TCAB but ‘all of them carried pistols’ in the NCF.  The applicant was only an ordinary member with no significant role, it was unreasonable that the “AL” had to deploy 5 armed men to kidnap and force him to quit the “BNP”.

c.     The adjudicator pointed out that the “AL” people must be familiar with the place of detention in the 1^st incident.  It was implausible that they stood far away from the toilet instead of keeping him under close observation.

d.     During the 1^st incident, the applicant was detained at Noyagao which was the village of the “AL”.  They must realize that the ferry was an important escape route.  It was unreasonable that they did not go there before the applicant.

e.     The applicant told the adjudicator that the abductors had weapons in the 2^nd incident.  However, in the NCF, he said none of them got any weapon.

f.     Given that the assailants only assaulted him with bare hands during the 2^nd incident, his bruises and cut wounds all over his body were exaggerations.

g.     His wife reported to the police during the 2^nd incident, however, she did not do so during the 1^st incident.  He explained that his wife might not know whether he was in Bangladesh or not as he used to travel a lot.  This explanation was not convincing.

h.     He was unable to explain why did he not seek help from the “BNP” at any time after the kidnaps.

i.     His assertion that a judge gave him a hotline number to summon help was near absurdity.

j.     He did not use the visa to go to Malaysia as there was no business opportunities.  This demonstrated that the fear of his safety was not imminent if not unreal.   

16.The adjudicator found that the applicant exaggerated and fabricated those aspects above in order to strengthen his application.

17.The adjudicator rejected his claim on all grounds on 3/4/2020. [8]

Judicial review

18.The applicant filed the leave application for judicial review on 14/4/2020.  In his affirmation in support, he pointed out that the adjudicator was unreasonable and failed to consider all the matters he raised.

19.During the interim on 13/4/2021, he filed an affirmation to this court requesting to withdraw his leave application.  He submitted that his problem had been resolved.  He would like to return to Bangladesh as soon as possible.  Leave was granted to withdraw on 23/4/2021.

20.On 7/5/2021, he filed another affirmation requesting to re-instate his leave application.  He stated that his problem was not resolved. He had changed his mind.

21.This court fixed a hearing on 26/7/2021.  The applicant told this court that he was expecting a letter from those in power evidencing resolution of the dispute.  It should be signed by 3-4 persons.  However, due to the pandemic, the letter did not arrive in time.  When asked why did he not wait for the letter before applying for withdrawal in April, he admitted it was a mistake.

22.I find the reason given most unconvincing.  I have grave doubt as to the real reason behind.  Nevertheless, I grant him leave to re-instate.  I proceed to consider the merits of the intended judicial review.

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.The applicant had not pointed out any specific error in the decision of the TCAB.  I agree with the findings of the adjudicator.  The applicant is not truthful.  Apart from the inconsistencies pointed out by the adjudicator, his delay in the application for protection substantially affected his credibility.

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 8th day of September 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