Rahman Moksudur v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1648/2019

[2021] HKCFI 3363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1648 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 came to Hong Kong illegally from China on 11/7/2013.  He was arrested by the police on the same day.  He raised a torture claim on 15/7/2013 which was rejected by the Director on 9/1/2014.  He also filed the present non-refoulement claim on 22/7/2013.

Background [1]

2.The applicant was born on 2/3/1977 in District Feni, Bangladesh [2]. He was married with a daughter.  His family and siblings were in Bangladesh.  He was a Muslim.  He had formal education for 8 years.  He assisted in his family cloth shop from 1994 to 2012.  He and his family had never been arrested, charged, imprisoned in Bangladesh.

3.He joined the student wing of BNP  (“BCD”) [3] in 1990.  He was elected the general secretary at Union level from 1995 to 2000.  He organized meetings, canvassed votes and assisted in election campaigns.  He worked under a senior leader of BNP.

4.In 2001, he joined a political group of young adults affiliated to BNP—Jubo Dal (“JD”).  He was the assistant secretary of Shurshadi until 2006.

5.In June 1997, he was attacked in his village by Obaidur Rahaman (“OR”) of the AL[4] as he refused to join the AL.  OR threatened to kill him.  He sustained injuries including cut wounds.  He was hospitalized for 3 days.  It took him 3 months to recover.  His mother reported to the police who refused to register the case as AL was in power.  After this incident, he was less active in politics until 2005.  There was no further trouble from AL people.

6.AL was in power since 2008.  One day around September 2009, he was threatened by OR again to quit BNP to join AL.  At that time OR was still the president of AL in his home area.  He refused.  Since then, he was often assaulted by OR and his men whenever he met them.  The assaults were not serious.  The police refused to register his complaints.  One of them was the sub-inspector.[5]

7.In the evening on 20/12/2011, around thirty AL people broke into his home.  They were armed.  He was not at home.  They threatened his mother that they would kill him if he continued to work for BNP.  The police refused to register his mother’s complaint as the AL was in power.  He thought he would be killed if he was at home.

8.He fled to his aunt’s place at Kornofuli Chittagong.  He came back to his family cloth shop every 10 days.  He was safe for a year.  He moved to Sonagazi after his cousin disclosed his whereabouts to OR.  He stayed there for about 6 months.  During that time, the AL did not harass his mother.  However, the police asked about him from time to time.

9.Around June 2013, the AL people harassed his brother at the family cloth shop.  He decided to leave Bangladesh.  An agent obtained visas to India and to China for him in May 2013.  He left Bangladesh on 25/6/2013 for Guangzhou without any problem.  He sneaked into Hong Kong on 11/7/2013.

10.His mother informed him on the phone that the AL had filed a false case against him.  The police would shoot him if he was located.  His family did not ask for details of the case.  His wife and daughter was safe in Chittagong.  His other family members were safe.  The AL people did not trouble them.  However, the police and the Rapid Action Battalion looked for him every night in his village.

11.He had no confidence in any complaint channels as the police would only follow the instructions of the ruling party.  He could not relocate as the government could be able to locate him.

12.He submitted court papers of 3 cases against him which occurred in 2012. He asked his brother to obtain those documents from the court through a lawyer in 2018.  He maintained that allegations against him were false.  He knew nothing about those incidents.  The papers recorded that he was arrested, however, he had actually escaped from the police.  His lawyer told him no bail would be granted.[6]

13.He feared that he would be ill-treated or killed by OR.  He would also be ill-treated by the authorities.

The decision of the Director

14.The Director pointed out that there was inconsistent evidence in relation to the 3 cases which affected his credibility as follows:[7]

a.  The applicant stated in his written signification (15/7/2013) that he was accused in 3 cases.  In his TCF (5/10/2013), he asserted that the AL had made false accusations against him but he did not know any detail.  In the 1^st screening interview, he maintained that he learned about those cases from his mother.  His family was afraid to ask for the details.

b.  He gave an inconsistent version in the 2^nd screening interview.  He told the Director that the police came to arrest him on several occasions concerning those 3 cases.  He managed to escape while other suspects were arrested.  He was represented by a lawyer in one of those cases in court in 2012.  His lawyer told him bail would not be granted so he escaped.

c.  He asserted in his TCF, SCF and 2^nd screening interview that he was never arrested in Bangladesh.  He had never been charged.  Whereas, the charge sheet submitted by him stated that he was arrested and sent to court.  Given that he had legal representation in 2012, he should be informed of the details of that case.

15.The Director concluded that the risk of harm was low.  The reasons were as follows:[8]

a.  Since he left the post of assistant secretary of Shurshadi in 2006, there was no evidence that he was involved in politics again.  There was no reason for OR to target him again in 2009—2012.

b.  During the assault in 1997 by OR, he was injured and took 3 months to recover.  Thirteen years later in 2010, he was attacked by OR again but the injuries were not severe.  There were several assaults which followed but he was not seriously injured before leaving Bangladesh.  He was not affected mentally.  His injuries did not amount to a minimum level of severity.

c.  After he came to Hong Kong, there was no evidence that OR still looked for him back in Bangladesh.

d.  He was safe in Kornofuli and Sonagazi for one and a half years.  OR could not locate him or caused any trouble to him.  This indicated the influence of OR was localized.  After all, OR was only a fellow villager farming and fishing for his livelihood.

e.  There was no evidence that the attack by OR was instigated by the AL party officially.  It was nothing about party politics of AL and BNP.  There was no evidence that any government official was involved.  The applicant was able to leave Bangladesh without any problem.  He was not targeted by the government.

f.  The applicant was only a member of BCD and JD before 2006.  After that, he had never held any official post in BNP.  He had not actively participated in the activities of BNP.  His profile did not indicate that he would be a target by the AL or the government.

g.  The applicant was charged in 3 cases according to the documents he filed.  This explained why the police wanted to locate him. There was no evidence that he would be unfairly treated by the court in Bangladesh.  The fact that he could have legal representation was indicative of his legal rights.

h.  Despite the conduct of the officers in his home area, the applicant had not taken his complaint to any higher authorities or other channels of complaint.  The misconduct of those officers could not be taken as the general condition in Bangladesh.

i.  Having considered various COI, the Director acknowledged that there were problems of corruption, infringement of human rights and abuse of power in the police.  The judicial system was functioning but inefficient.  However, the government had taken steps to enhance police training and tackle corruption.  The Police Reform Program was designed to improve professionalism and discipline of the police.  The ACC [9] was established to deal with corruption.  There were complaint channels against the police.  There were news reports about punishing corrupt officers.  As a whole, there was evidence that the Bangladesh government was capable in protecting citizens.

j.  The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was about 157 million.  It would be difficult for OR to locate him.  It was not unduly harsh for him to relocate to Dhaka or Chittagong.

k.  The papers produced by the applicant showed that he was charged with offences.  He was brought to court.  There was no evidence that he would be ill-treated arising from these cases.

16.The Director rejected the claim on BOR 2, BOR 3 and persecution grounds on 8/6/2018.[10]

The decision of TCAB

17.The applicant attended a hearing on 12/3/2019.  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: [11]

a.  The applicant failed to mention to the adjudicator that he was the general secretary of BCD in 1995.  He only mentioned that he was with the BCD for quite some time.

b.  The applicant asserted in his TCF (5/10/2013) that he joined the JD in 2001 and elected the assistant secretary from 2001—2006.  However, it was inconsistent with his SCF (30/4/2018) that he was less involved after the attack in 1997 and avoided AL people from 1997 to 2005.  It was also inconsistent with his assertion in his SCF that he resumed his activities with BNP when the caretaker government took over in 2005.  He explained that the version in TCF was accurate.  He was forgetful and tense during the hearing.

c.  He told the adjudicator that he joined JD when he was about 18 or 20 (1995 or 1997).  It was inconsistent with his TCF which he claimed to have joined JD in 2001.

d.  The applicant told the adjudicator that he was in the position of joint secretary of JD at the time when Sheikh Hasina came to power in 2012 or 2013.  However, there was no general election in 2012 or 2013.  He then said he could not recall.

e.  The applicant told the adjudicator that he was assisting the secretary of JD after 2006.  It was contrary to his TCF and SCF which recorded that he did not hold any position after 2006.  When questioned about the inconsistency, he reverted back to the version in his TCF.  The adjudicator was doubtful about his explanations.

f.  The applicant was unable to tell the adjudicator the political stance of the BNP.  His knowledge of the BNP was not commensurate with his claimed role in the party.  He mentioned that Shahid Ashraf or Shariful Islam was once the secretary of BNP.  However, the adjudicator was unable to confirm that from other sources.

g.  The adjudicator found that the applicant was not involved in the activities of BNP since he arrived in Hong Kong six years ago.

h.  The applicant was vague about the frequent attacks by OR.  He claimed that there was an attack by 20 people in 2009.  When pointed out to him that he only mentioned one attack in 1997 in his TCF, he asserted he was always fighting with OR.  The adjudicator doubted why he could not recall the attack closer in time but an attack 16 years before he left Bangladesh in 2013.

i.  Although the applicant asserted that he suffered a lot during the last two years in Bangladesh, his evidence about the harassment by OR was general and vague.  The adjudicator queried why OR would still target him given that he no longer held any position in JD.

j.  The applicant claimed that he visited his mother at night time to avoid OR and his men.  However, the adjudicator pointed out that according to his evidence the police always harassed his mother at night.  The applicant then said he only visited once or twice.  The adjudicator was not satisfied with this explanation.

k.  The applicant told the adjudicator that he was not sure why the police came to his home while in Bangladesh.  He also told the adjudicator that the police informed his mother there was a case against him.  The adjudicator doubted the applicant’s evidence that he only learned about the cases after he came to Hong Kong.

l.  The applicant told the Director in 2018 that he was detained by the police in 2011 but was released after he offered a bribe.  He admitted that he had not mentioned this previously.

m.  The papers submitted by the applicant clearly recorded that he was arrested and sent to court.  He even instructed a lawyer in 2012 to represent him.  This was inconsistent with the evidence of the applicant that he was never arrested and did not know about the 3 cases. 

18.The adjudicator concluded that the applicant was not credible.  She rejected the factual basis of the claim entirely.

19.The adjudicator rejected his claim on BOR 2, BOR 3 and persecution grounds on 13/6/2019. [12]

Judicial review

20.The applicant filed the leave application for judicial review on 17/6/2019.  In his affirmation dated 17/6/2019, he complained that the Director was excused from the appeal hearing.  The TCAB did not question the decision of the Director.  The TCAB had not considered that the applicant was not represented.  The TCAB did not inform him about the channels of complain.

21.In another letter dated 16/10/2020, the gist of his grounds were that the adjudicator did not analyse the facts and the supporting documents.  The adjudicator relied on sources of news which were not official.  He stressed that his life was at risk as the AL people were still looking for him. The police could not help him.  He would be tortured or killed by the police if he returned to Bangladesh.

22.During the hearing on 2/8/2021, the applicant stressed that the police still came to his home looking for him.  He would return to Bangladesh when the BNP came to power.

23.In relation to the grounds raised in his affirmation dated 17/6/2019, this court must clarify that the hearing before the TCAB is a rehearing, not an appeal.  The TCAB is to consider afresh the claim on all applicable grounds.  The decision of the TCAB superseded that of the Director.  It is the final decision on the claim at the end of its processing.  There is no obligation for the TCAB to examine the decision of the Director.  However, the TCAB may cure any defect in the Director’s decision.[13]

24.A claimant under the USM is not entitled to legal representation at all stages of the screening procedures.  The TCAB had acted fairly and allowed sufficient time for the applicant to answer questions.  There was an interpreter in the hearing.  The applicant was treated fairly.

25.As to complain channels, it is unclear what did the applicant mean by that.  If he is not satisfied with the decision, he could apply for judicial review.  In case of other complaints against the conduct of the adjudicator, he could always write to the chairperson of the TCAB.  In my view, there is no substance in these grounds.

26.In relation to the grounds raised in the letter dated 16/10/2020, the adjudicator had not relied on any news reports in coming to her decision.  In fact, she had analysed the evidence in detail.  She found that the applicant’s evidence about the attacks by OR was vague and lacked details.  The applicant was only a member of JD which did not justify targeting by OR.  There were material inconsistencies which the applicant failed to explain.  The papers submitted by him showed that he was arrested and taken to a court.  He was even represented by his lawyer in 2012 in one case.  It contradicted his assertion that he was never arrested or had no knowledge of those cases.  I agree with the findings of the adjudicator that the applicant was not truthful. The alleged risk of harm is not plausible.

27.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.

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

Conclusion

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

Dated 16^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