Md Borhan Uddin v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2657/2019

[2021] HKCFI 3878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2657 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 sneaked into Hong Kong from Shenzhen by sea on 21/12/2014. He was arrested by the police. He then raised the non-refoulement claim in this case on 25/12/2014.

Background

2.The applicant was born on 21/5/1980 in Uttar Kebolnagar Kazikand, Bangladesh[1]. He had no formal education.  He was married.  His wife and 5 children were in Bangladesh.  He was a co-owner of a biscuit factory in his home village. He was a member of “JIP” [2]. He did not hold any post but just attended the rallies.  The JIP members were in opposition to the “AL” [3] members.

3.Around mid-2014, his enemy and members of AL went to the Islamic school intending to destroy it [4]. He and other villagers confronted them and a fight ensued. Both sides used sticks. He fainted during the fight as his head was injured and he was shot at his thigh. He was treated by a doctor to remove some rubber bullets from his thigh at the village pharmacy. The police had subsequently laid charges against him and the people of his side.

4.A few days later, he was arrested by the police while on the street. He was detained for a few days and eventually granted bail. He was represented by a lawyer.

5.He went to stay with his uncle in Dhaka from September to December 2014. He left Bangladesh for China in December to avoid the prosecution proceedings.

6.At that time, he owed three suppliers of about Taka 600,000 in total. The sum was goods supplied on credit for his business. The creditors called him after he came to Hong Kong. They threatened to complain to the arbitrators of his home village.

7.Eventually, he met some Bangladeshi men in China who told him to come to Hong Kong for non-refoulement protection.

8.He feared that the police would arrest him if he returned to Bangladesh. His enemy might kill him. They threatened his family but they were not harmed. His sons had to change school in order to avoid them. His creditors would pursue the debt.

9.He did not think it was viable to relocate to Dhaka or Chittagong. He did not think the police would help him.

The decision of the Director

10.The Director found that the risk of harm was not real and imminent.  His claim was rejected for the following reasons: [5]

a.     There was one incident of confrontation between the applicant and his enemy. The medical certificate only showed his injuries. It did not reveal the background of the confrontation.[6] The injuries did not attain a minimum level of severity.

b.     After the confrontation, nothing happened in the home village. The applicant could still go out on the street before he was arrested by the police. After he was granted bail, he could stay safely in Dhaka. While there might be threats to his sons and father, they were not attacked.

c.     The applicant was never assaulted by the creditors. He was not threatened with violence. The creditors threatened to complain to the arbitrators of the home village. There was no imminent risk of physical harm from the creditors.

d.     There was no evidence that any government officials or the AL party were involved. The State did not instigate, condone or consent to their conduct.

e.     He had not been ill-treated when detained by the police. He was allowed visitors and legal representation. He was subsequently granted bail. There was no evidence of unfair procedures against him by the police or the court.

f.     Despite that he alleged the charges were wrongly laid against him, he had never complained to any higher authorities. He deliberately chose to avoid the proceedings. There was no evidence that he would not face a fair trial. So far, he was treated fairly. The non-refoulement protection scheme should not be used to avoid criminal liability.

g.     He was not targeted by the State and could leave the country without any problem notwithstanding that he had bribed an immigration officer.

h.     Having considered various COI, the Director accepted that there were corruption and malpractice in the police.  There was serious public distrust of the police. The government was ineffective in law enforcement.  However, the government had taken steps, by the PRP [7], to enhance police training and tackle corruption recently. Its aim was to build a safer and secure country. Any person could complain to a higher authority if an officer failed to take action. Institutions such as the Anti-Corruption Commission, the Grievance Redress System were set up to tackle corruption and to provide channels for complaint. There were news reports about AL members brought to justice. As a whole, there was evidence that the Bangladesh government was able to protect citizens.

i.     The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was 158 million.  Given his age and experience, he should be able to relocate to Dhaka or Chittagong.

11.The Director rejected all claims on 6/8/2018.[8]

The decision of TCAB

12.The applicant attended a hearing on 19/6/2019. He confirmed that the content of the NCF and Record of Interview before the Director was correct. The adjudicator pointed out the following reasons and concluded that the applicant was not credible:

a.     The applicant did not seem telling the truth in matters such as his family name/surname, number of children, date of birth. However, he was able to give a detailed account of the events leading to his coming to Hong Kong. This was inconsistent with his assertion that he had no education and had head injuries which affected his memory.[9]

b.     The applicant did not mention that his enemy (Kazi) was affiliated to AL in the NCF. He insisted that he had mentioned it but did not know why it was not recorded. He further explained that he had high blood pressure and sever diabetes at the time when the NCF was compiled.

c.     The adjudicator pointed out that there was inconsistency as to the age of his sons who attended the school destroyed by Kazi in 2003. There was a difference of 8 years according to his evidence before the TCAB. The applicant was unable to explain.[10]

d.     According to the NCF, he went to the police station after the fight but was detained by the police. This was inconsistent with his evidence that he was arrested a few days later on the street. He explained that the interpreter did not read back everything in the NCF to him. He did not pay attention.

e.     The applicant mistook that the scar left by a bullet was on his left thigh. He mentioned that several times to the adjudicator. Whereas, the scar was on the right thigh according to the NCF.

f.     The applicant was not harmed again after the fight. His family was never attacked. It was strange that they did not put pressure on the applicant by harassing his family.

g.     After the fight, Kazi did not make further attempt to destroy the school. The sons of the applicant continued to study there until 2018. There was no evidence that Kazi was acting in his official capacity as chairman of Zainagar Union. There was no evidence that the State had failed to discharge its duties or tolerate unlawful conduct.

h.     There was no evidence that Kazi targeted the applicant because of difference in political opinion. There was reasonable State protection and viable options for relocation. The adjudicator opined that the influence of Kazi was localized.

13.The adjudicator did not think the documents submitted by the applicant could assist his case. The adjudicator rejected the factual basis of his claim and dismissed his claim on all grounds on 6/9/2019.

Judicial review

14.The applicant filed the leave application for judicial review on 11/9/2019.  In his affirmation in support, he did not point out any error in the TCAB decision.

15.On 1/4/2021, 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 16/4/2021.

16.On 27/8/2021, he filed another affirmation requesting to re-instate his leave application.  He stated that his problem had not been resolved.

17.This court fixed a hearing on 25/10/2021.  The applicant informed this court that he did not want to go back solely because of the pandemic. His daughter and 2 brothers had died of Covid-19 about 2 months ago. He had nothing further to update. He had no complaint.

18.I find the reasons given were most unconvincing.  It was no longer his problem with Kazi but the pandemic which hindered his return to Bangladesh. Nevertheless, I grant him leave to re-instate.  

19.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.

20.Apart from the inconsistencies pointed out by the adjudicator, the manner he answered simple questions was revealing. I agree that the applicant was not truthful.  The adjudicator was justified in rejecting the factual basis of his claim. I agree with the conclusion of the adjudicator.

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 28^th day of December 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