Majharul Islam v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 3004/2018

[2021] HKCFI 3205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3004 OF 2018

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 from Bangladesh on 7/6/2006 as a visitor. He overstayed since 22/6/2006. He filed an asylum claim with the UNHCR[1] on 15/1/2007.  He was arrested by the police on 12/3/2008[2]. His asylum claim was closed on 19/3/2009 but he filed a torture claim instead. His torture claim was rejected by the Director on 5/2/2014. He then filed the present non-refoulement claim on 8/2/2014.[3]

Background

2.The applicant was born on 2/4/1984 in Islambag, Dhaka, Bangladesh.  His parents were deceased. He had no sibling. He had education for 10 years. He was a salesman.

3.In 2003, he set up a charity group with 4 friends. The group did not have a name. It was not registered with the Bangladesh authority. He was the treasurer. They had not kept any formal account. They raised money in providing food and education for the poor. In about 2006, they rented an office. The locals appreciated their work. They were well known in the neighbourhood.

4.In March 2006, Rafique (“R”) started to threaten them. R was the son of Babul who was the elected Chairman or Commissioner of Ward 65 in Dhaka. R was a notorious troublemaker with some followers. R was a drug addict. Babul had close affiliation with the BNP.[4] There was no follow up on the threats because of R’s background.

5.In April 2006, R rushed into their office with some men. R alleged that their charity work interfered with the duties of his father. R demanded them to disband the charity group. A fight ensued between the two groups. He and his group had minor bruises.

6.Subsequently, his group had a meeting with Babul. Babul denied any involvement in the attack. Babul promised to talk to R. However, the disturbance from R continued.

7.Eventually, his group took revenge on R. They attacked R at the place where R took drugs. He used a chopper and the others were also armed during the attack.

8.After the attack, he escaped to his father’s friend in Uttara. The police did not contact him. He was not sure if any warrant was issued to arrest him. Subsequently, he sold his father’s estate through an agent and left Bangladesh. He did not have any update of the situation since he left. It was not practicable for him to relocate in Bangladesh. He had used up his money and had to hide away from R and Babul permanently if he returned to Bangladesh. He could not afford a bribe to seek assistance from the authorities.

9.In October 2017, his friend told him that one member of his charity group was killed in Lalbagh, Dhaka. He strongly believed that R and Babul was responsible as they also lived in Lalbagh.

10.He feared that he would be tortured if he returned to Bangladesh. R, Babul and their associates would take revenge on him.

The decision of the Director

11.The Director found that the threat of harm to the applicant would unlikely be carried out.  His claim was rejected for the following reasons: [5]

a.     The applicant had fought with R and his men once in April 2006. He had minor bruises. The injury was not severe. There was insufficient evidence to explain the cause of the fight between his group and R’s group.

b.     The applicant could not explain how his charity work conflicted with the duties of Babul as the Chairman or Commissioner of Ward 65. Given that his charity group was informal and small, it was unreasonable that R and Babul would target them.

c.     The incident occurred about 12 years ago. The charity group was disbanded in 2006. There was no reason that R and Babul would still be hostile to the applicant.

d.     The applicant failed to explain the reason for the revenge on R. There was no explanation why such violence was used. There was no evidence about the injuries of R. There was no evidence about the events after the revenge to make him fled the country.

e.     There was no information about Babul’s current situation. There was no explanation how Babul’s status in the past, as the Commissioner of Ward 65, would pose a continuing threat to the applicant.

f.     There was no evidence that the BNP was involved in the incident despite Babul was a member of this party. There was no evidence that any public official had instigated, consented or acquiesced the conduct of R.

g.     As to the murder of a member of the charity group, there was no detail. It could not be confirmed by other evidence. The only link was that the deceased, R and Babul lived in Lalbagh. The information asserted by the applicant was insufficient to implicate R and Babul. It was only his speculation. This murder, if it took place at all, could not constitute a source of fear.

h.     Having considered various COI, the Director acknowledged that there were corruption, infringement of human rights and abuse of power in the police.  The judicial system was inefficient. However, the government had taken steps to enhance police training and tackle corruption. The Police Reform Program was designed to improve professionalism and performance of the police. It also supported an accessible and transparent criminal justice system. Legal aid services had been set up in various districts. There were complaint channels against the police. 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 its citizens.

i.     The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was about 166 million. It would be difficult for R and Babul to locate him. Given his age and work experience, he should be able to relocate to Dhaka or Chittagong. It was not unduly harsh.

12.The Director rejected the claim on BOR 2, BOR 3 and persecution grounds on 26/2/2018.[6]

The decision of TCAB

13.The applicant attended a hearing on 21/8/2018.  The adjudicator pointed out the following reasons to conclude that the applicant was not a truthful witness.  She rejected the factual basis of his claim: [7]

a.     The charity group of the applicant was a very basic kind with no formal account and next to no record apart from a notebook. There was no bank account. Given this background, it was implausible that their success would have encroached on Babul’s duties. It was also not credible that it led to the harassment by R.

b.     It was the applicant’s group who assaulted R during a revenge. The applicant was unable to provide any evidence that there were criminal charges against any one of the charity group. They were not concerned that they would be charged with a criminal offence. They fled because they had committed a criminal act and feared retribution from Babul—the victim’s father.

c.     The adjudicator pointed out that applicant downplayed the revenge. He told the adjudicator that it was during the heat of an argument that he grabbed a chopper from a nearby butcher shop and attacked R. This was inconsistent with his NCF in which he said they were armed when they confronted R.

d.     According to some COI, the Dhaka municipal council had been restructured. There had been a reduction in the number of Wards which affected the Ward previously held by Babul. However, the applicant insisted there was still Ward 65. He also asserted that Babul had changed allegiance to Awami League, the ruling party. The adjudicator found this self-serving. There was no evidence to support this. It was a fabrication.

e.     Despite the re-structure of the Dhaka municipal council, the applicant insisted that Babul was still a threat to him 12 years after the incident. Babul continued to be in power and would be able to locate him. The adjudicator was not convinced.

f.     The applicant had not been in contact with anyone of the charity group in the past 12 years. He had no knowledge about the circumstances of the murder in 2017. The adjudicator found that the timing of this killing was fortuitous. The murder was self-serving.

g.     The adjudicator did not accept that there was a consistent pattern of gross and mass violation of human rights in Bangladesh.

h.     The adjudicator concluded that the bases of the claim were fabricated and exaggerated. The adjudicator rejected the claim entirely.

14.The adjudicator rejected his claim on BOR 2, BOR 3 and persecution grounds on 1/11/2018. [8]

Judicial review

15.The applicant filed the leave application for judicial review on 28/12/2018.  In his affirmation in support, he pointed out that he was not satisfied with the judgment. He had a problem and could not go back.

16.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.

17.The applicant had not pointed out any specific error in the decision of the TCAB.  I agree with the findings of the adjudicator that the applicant was not truthful. The role of the applicant’s charity group was insignificant. There is no detail in various important aspects, such as, the reason for attacking R, the police investigation and the murder. The alleged risk of harm is not plausible.

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

Conclusion

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

Dated 1^st day of November 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