Alam Mir v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 3142/2019

[2021] HKCFI 3319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3142 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:

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 was from Bangladesh. He was allowed to stay in Hong Kong on 13/11/2006 for 2 weeks. He departed Hong Kong on 23/11/2006. He returned on 26/11/2006. He was allowed to stay until 10/12/2006. He was arrested for overstaying on 25/10/2007. He then raised a torture claim which was rejected by the Director on 14/11/2013. He then filed the present non-refoulement claim.

Background

2.The applicant was born on 2/2/1972 in Munshigonj, Bangladesh.  He had education up to class 2 level.  He was a Muslim.  He was married.  His wife and daughter were in Bangladesh.  He was a supporter of “JeI” [1]. He did not hold any post but just campaign for the party.  Before this case, he had no dispute with any “AL” [2] member. He had never been arrested, charged or imprisoned in Bangladesh.

3.In early 2006, he was a bus driver employed by Taj Transport. One day, 5-6 men hijacked his bus. He was tied up and thrown out of the bus. Those men stole the bus. He did not report the incident to the police.

4.The next morning, one of the worker called and alleged that he had stolen the bus. That worker told him to leave the area or else he might have a big problem. His boss had told the AL people about the hijack. They would track him down. He immediately went to stay with a friend in Dhaka. He stayed safely there for 2 months.

5.Three days later, his boss went to his home. His wife and daughter were there. The boss threatened to kill him if he did not return the bus. His boss did not harm his wife or daughter. He did not report the threat as he could not afford a bribe. He did not clarify with his boss.

6.He decided to leave Bangladesh for Hong Kong. He left Bangladesh on 13/11/2006 without any problem. He did not seek protection in China during a short trip there. He did not seek protection in Hong Kong before his arrest. He did not know where to surrender himself. He only learned about it while in CIC.

7.He thought it was useless to report as the police were corrupt and was influenced by the “AL”.  He did not think the complaint channels would be useful. He did not know anything about the Anti-Corruption Commission.  He did not think internal relocation was possible as the “AL” would be able to track him down.  There was an ID system in Bangladesh.  He could be easily located through the computer record.

8.He resumed contact his wife in 2018. She said his boss continued to enquire about him every month. The boss threatened to kill him however his family was not attacked.

The decision of the Director

9.The Director found that the risk that the applicant would be killed by his boss was low.  His claim was rejected for the following reasons: [3]

a.     There was no physical assault on the applicant by the boss. The death threats were related to the applicant through his wife. There was no severe ill-treatment whatsoever.

b.     The applicant was able to stay safely in Dhaka with his friend. He planned the trip to Hong Kong. There was no evidence that he was under any mental stress.

c.     While his boss put pressure on him through his wife, there was no attempt to hurt his family. He had never attempted to clarify the incident with his boss. He had not reported to the police. There was no evidence of imminent danger from his boss.

d.     He was able to stay safely in Dhaka for 2 months with a friend. The power of his boss to locate him was limited.

e.     He was only an ordinary supporter of “JeI”. There was no reason that the “AL” would employ resources to assist his boss in a private dispute. It was not reasonable that the “AL” would involve themselves in pursuing the applicant.

f.     He had delayed for about 11 months before he filed a claim in Hong Kong in November 2007. This was inconsistent with the assertion that he was under death threat from his boss.

g.     Having considered various COI, the Director accepted that there were corruption and lack of training in the police.  The government was ineffective in law enforcement.  However, the government had taken steps to enhance police training and tackle corruption recently. Any person could complain to a higher authority if an officer failed to take action. Institutions such as the Anti-Corruption Commission, the National Legal Aid Services Organization and BLAST[4] were set up to tackle corruption, to provide legal aid and legal advice. 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.

h.     The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was 157 million.  Given his age and experience, he should be able to relocate to Rajshahi or Chittagong.

10.The Director rejected all claims on 9/7/2018.[5]

The decision of TCAB

11.The applicant attended a hearing on 5/9/2019.  The adjudicator pointed out the following reasons and concluded that the applicant was unreliable.  He rejected the factual basis of his claim: [6]

a.     The applicant had not been attacked by his boss. His family was not attacked either.

b.     The applicant did not report the hijack of the bus or the death threat from his boss to the police.

c.     The adjudicator pointed out that there was no evidence that the boss had any intention to kill the applicant.

d.     In early 2006, “BNP” was the ruling party [7]. His boss was only a committee member at sub-district level. The adjudicator opined that the applicant had exaggerated the position of the boss as the leader of the “AL” in Dhaka. The applicant insisted that though the “AL” was only the opposition, police would assist them because of money.

e.     The applicant told the adjudicator two versions about the financing of his trip to Hong Kong. He first said in TCF that he paid 10,000 Taka for the passport and 35,000 Taka to an agent—Jahid Hasan. When queried about his limited resources, he then said he was sponsored by Jahid Hasan who was rich.

f.     He made a three-day-trip to China and returned to Hong Kong to extend his visitor visa in November 2006. There was no reason to make such a trip if he had an intention to seek protection.

g.     Eventually, he further delayed for about 11 months before raising the present claim. It was only done after he was arrested by the police at a friend’s place. He worked for his friend in return for accommodation in Hong Kong.

h.     The adjudicator found that there was reasonable State protection and reasonable relocation options.

12.The adjudicator rejected his claim on BOR 2, BOR 3 and persecution grounds on 4/10/2019. [8]

Judicial review

13.The applicant filed the leave application for judicial review on 23/10/2019.  In his affirmation in support, he pointed out the following:

a.     He was not represented in the appeal to TCAB. There was no legal aid.

b.     The hearing bundle was served on him about 9 days before the hearing. The majority documents were in English which he did not understand. He could not afford an interpreter. He did not understand the procedures in the TCAB hearing. However, he answered all questions honestly.

c.     The news reports were of hearsay in nature. The adjudicator had made groundless speculations in the decision.

14.During the interim, he filed an affirmation on 10/6/2021 to this court requesting to withdraw his leave application.  He submitted that his problem had been resolved.  He would like to return to Bangladesh soon.  Leave was granted to withdraw on 25/6/2021.

15.On 12/7/2021, he filed another affirmation requesting to re-instate his leave application.  He stated that his problem had not been resolved.

16.This court fixed a hearing on 6/9/2021.  The applicant informed this court that initially his wife told him that the other party had settled the problem. However, his boss disagreed. His wife had not discussed with the boss. He maintained that there was a chance that the problem would be resolved in 6 months. By then, he would return to Bangladesh.

17.I find the reasons given most unconvincing.  His boss was the main source of threat. All along in his evidence, only his boss put pressure through his wife. It was unreasonable that the boss was not consulted. Nevertheless, I grant him leave to re-instate.  

18.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.

19.I agree with the conclusion of the adjudicator. The applicant was not truthful.  Apart from the inconsistencies pointed out by the adjudicator, his delay in the application for protection substantially affected his credibility.

20.As to the grounds raised in his affirmation, I have the following comments:

a.     There is no right to legal assistance at all stages of the non-refoulement claim.

b.     The hearing bundle consisted of the Director’s decision which must have been translated to him through the DLS. As to documents such as the NCF and the record of the screening interview, they were compiled with the assistance of an interpreter. The applicant should have a reasonable understanding of the contents. For the other documents, the applicant should find language assistance according to his resources. In fact, he submitted the affirmation in typewritten English. He was able to source language assistance.

c.     He confirmed that he had answered questions honestly during the TCAB hearing, there was no record of any complaint against the TCAB.

d.     The news reports were from reliable news sources which were used to support the COI. The COI were compiled by foreign government agencies—US Department of State and UK Border Agency—which were authentic institutions.

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

Conclusion

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

Dated 8^th 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