Hossain Billal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2786/2019

[2022] HKCFI 837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2786 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 re-instated.

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong illegally on 20/7/2015[1]. He was arrested by the police on 22/10/2015.  He filed the present non-refoulement claim on 25/10/2015.

Background

2.The applicant was born on 28/11/1987 in Shariatpur, Bangladesh.  He had education for 10 years.  He was single.  His family was in Bangladesh.  He was a salesman in 2010. He was a construction worker in Libya from 2010 to 2012.

3.He joined the “BNP” [2] around 2007.  He was a general secretary. He joined rallies and other activities of “BNP”.  His brother was also a member. The AL[3] was the dominant party in his village.

4.In 2009, he and his brother joined a rally during the election of the chairman of the village. They encountered another group of AL people. A fight ensued. They were attacked with hockey sticks and knives. He was injured and hospitalized for a week. After this incident, he and his brother stopped joining activities of the BNP. They moved to Dhaka to start their business. He was safe in Dhaka for about a year.

5.Since then, he received threats from AL members on the phone. They threatened to burn down his house if he did not return to the home village. He thought they wanted to beat him up. His friends told him that his house was vandalized by AL members. His family was not harassed. They only received calls from AL members asking about him.

6.He left Bangladesh to work in Libya in 2010. He returned in 2012 and stayed with his sister in Dhaka. He did not receive any threat. He was not attacked.

7.However, he still worried about his safety. He arranged to leave Bangladesh through an agent. He bribed the Immigration Officer before he was permitted to leave.[4] He flew to Guangzhou and took a bus to Shenzhen. He sneaked into Hong Kong by boat on 20/7/2015. He lodged the non-refoulement claim after he was arrested by the police on 22/10/2015.

8.He did not think internal relocation was possible as the “AL” would be able to locate him.  The police were corrupt and did not investigate.  The police only helped people supporting AL which was the ruling party. He did not think any government authorities would protect him.

The decision of the Director

9.The Director found that the risk of harm was low. The reasons were as follows:

a.  From 2006 to 2015 when he left Bangladesh, he was only attacked once in 2009. He was safe living in Dhaka from 2012 to 2015. The ill-treatment inflicted did not amount to a minimum level of severity.

b.  The dispute arose in 2006 between the applicant and the AL group during a cricket match. The group wanted to take revenge on the applicant even after he joined the BNP in 2007. It was a private dispute. There was no evidence that any political parties were involved.

c.  He had stopped joining activities of the BNP after the fight in 2009. He had been away working in Libya. He was safe in Dhaka from 2012 to 2015. All these indicated that the hostility should have dissipated after these years.

d.  He chose not to report the threats. He did not complain to other authorities. There was insufficient evidence that the government had acquiesced or failed to exercise due diligence.

e.  The Director accepted that there were serious problems of corruption, inefficient investigation and political influence by the ruling party in the police force.  There were human rights abuses. However, the government had taken steps to enhance police professionalism and tackle corruption.  The Police Internal Oversight supervised police units to prevent abuse and corruption. The Anti-Corruption Commission was set up to fight corruption.  The NHRC[5] was tasked to protect human rights. There were news reports about punishing corrupt officers and leaders of political parties.  As a whole, there was evidence that the Bangladesh government was capable of protecting its citizens.

f.  The law in Bangladesh allowed freedom of movement within the country.  Bangladesh was a large country.  The population was about 157 million.  Given his age and education, he should be able to relocate to Dhaka or Khulna.  It was not unduly harsh.  In fact, he was safe while staying in Dhaka.

10.The Director rejected all claims on 10/12/2018.

The decision of TCAB

11.The applicant attended a hearing on 19/6/2019.  The adjudicator found that the applicant failed to prove that there was real risk of harm for the following reasons:

a.  The applicant was involved in the incidents with the AL as part of a group. He was not personally targeted. This was also the situation about his political affiliation. The threats to him were never carried out. His family was not attacked. His house was not burned down.

b.  The alleged attacks in 2006 and 2009 were not instructed by the AL. There was no evidence that the AL knew or instigated the threats. The applicant had stopped involvement with BNP since 2009, the risk that he would be harmed again was low.

c.  The applicant was safe in Dhaka. His presence was not detected. It appeared that the AL influence was in the vicinity of his home village. In fact, there was no evidence that the AL was involved.

d.  The applicant told the adjudicator that he had complained to the Deputy Commissioner in his home district. This was never mentioned before. In any event, he had not followed up this complaint. It was only his friends who complained to the police. The applicant did not follow up. He admitted to the adjudicator that he only believed the police would not help.

12.The adjudicator concluded that there was no real risk that the applicant would be harmed if he returned to Bangladesh. The adjudicator rejected his claim on all grounds on 9/9/2019.

Judicial review

13.The applicant filed the leave application for judicial review on 23/9/2019.  In his affirmation, he did not specify any error in the TCAB decision.

14.On 26/5/2021, he applied to withdraw the leave application. He asserted that his problem in Bangladesh was resolved. He wanted to return to his home country. This court granted leave to withdraw on 4/6/2021.

15.On 7/12/2021, he applied to re-instate his leave application as the problem was not solved.

16.This court held a hearing on 17/1/2022. The applicant asserted that when his younger brother returned to Bangladesh, the problem started again. The person, who gave assurance that the problem was resolved, had changed his mind. He had not mentioned that person in his claim. This court had grave doubt about this explanation. Nevertheless, leave was granted to re-instate his leave application.

17.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.

18.I agree with the findings of the adjudicator.  The applicant is not truthful.  His evidence could not support any real risk of harm.  It is unconvincing that the AL people would still target him after 10 years.  The adjudicator is justified in rejecting his appeal.  

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

Conclusion

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

Dated 24^th day of March 2022

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