RIZAUL v. DIRECTOR OF IMMIGRATION

HCAL 90/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 90 OF 2015

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BETWEEN
RIZAUL Applicant
and
DIRECTOR OF IMMIGRATION Respondent

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Before: Hon Fung J in Court

Date of Application: 9 June 2015
Date of Judgment: 14 August 215

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JUDGMENT

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1. The applicant RIZAUL is applying for leave to issue judicial review against the Director of Immigration’s decision dated 31 July2014, and that of the Torture Claims Appeal Board/Adjudicator for the Non-refoulement Claims dated 5 June 2015.

2. The applicant claimed that he cannot go back to his home country of Bangladesh because he fears that he will be killed or harmedby his enemies, namely: (i) his ex partners in a business, and (ii) his cousins, because they have police connection under governmentcollusion, corruption and acquiescence. He filed claims under all applicable grounds for non-refoulement under Art. 33 of the 1951Refugee Convention, Article 3 of the Hong Kong Bill of Rights, and Part VIIC of the Immigration Ordinance (Cap.115).

3.The applicant was in vegetable business with his partners for over 10years and it had been profitable. In 2006, the business resultedin loss of profits of about 2million Takas (about HK$200,000) because of heavy rain. The Applicant was asked to pay his share ofloss. During the confrontation, he was slapped by his partners, and they threatened him that if he did not pay up the money, theywould break his limbs and kill him. He did not report this matter to the police because he thought his partners would bribe the policeor insert political influence over them.

4. The second incident related to an inheritance dispute. The applicant’s father left a piece of land, half to the applicant and theother half to his cousins. His mother told him that the cousins were exploiting more than their own share, and when the applicant’sbrother employed a surveying clerk to measure the land, he was interrupted by the cousins, uncles and other powerful influentialpeople. His brothers were attacked by wooden stick and his brothers were injured. The mother was threatened by the cousins. The familydid not report the matter to the police because they believed that the cousins had good connections with the leaders of the politicalparty Awami League and the police would be influenced by them.

5. The applicant fled Bangladesh in 2006 for an intended trip to Malaysia through China. An agent got him the air ticket, passport andChinese visa, but he ended up in Hong Kong and the Agent disappeared.

6. The Director of Immigration rejected the applicant’s claims. The Applicant filed an appeal and the Torture Claims Appeal Board/Adjudicator for Non-refoulement Claims conducted an oral hearing and affirmed the Director’s decision.

7. The Adjudicator noted that there were inconsistencies in the applicant’s story at the oral hearing:

(1) The loss of profits was changed from 2million Takas to 600,000Takas;

(2) He claimed to be illiterate and could not give details of the working of the business, but upon being questioned, he said he couldread figures and numbers but not other things;

(3) He could not provide details of the inheritance;

(4) For the first time he revealed that his brother was hiding in other parts of Bangladesh arising from the incident of the surveyof the land;

(5) He explained that he was only told about the situation of his brother 2 to 3 weeks before the hearing, but nonetheless he nevervolunteered it as a ground for fear until he was asked about the current being of his brother.

8. The Adjudicator found that the applicant and his two partners had good business relationship for 10years and the loss in 2006 wasdue to the rainy season. The share of loss by the applicant was fair. There was no evidence of any vicious or devious tendency ofthe partners. Granted that 2million Takas is a substantial sum, the business partners would not recover anything by harming, letalone killing the applicant. The risk of being killed or harmed upon return to Bangladesh is low, and the risk is further reducedif the applicant relocates himselfin Bangladesh.

9. The incident over the inheritance of land took place when the applicant was already out of Bangladesh. The land was worth about 200,000Takaswhich was not a high value, and that would not support the assessment of high risk of harm or killing. And the risk would be furtherreduced if the applicant relocates himself in Bangladesh.

10. The Adjudicator accepted there is still corruption and inefficiency in the Bangladesh Police, but the 2013UK Border Agency’s Countryof Origin Report on Bangladesh stated that a citizen who did not receive their entitled services could complain to a higher authority,and the Bangladesh government has taken significant steps to fight corruption. The applicant’s decision of not going to the policeis purely speculative.

The Adjudicator found there was nothing to suggest that any officials had been involved in the two incidents, and there is no persecutionin the meaning of Ubamaka Edward Wilson v SJ & AnorFACVNo.15 of 2011, and the risk of ill-treatment upon expulsion from Hong Kong is very low.

11. The Adjudicator had assessed the applicant’s credibilityin hisclaim with an oral hearing. The Adjudicator also considered thatthe disputes were of purely commercial and/or family nature, and would not support a substantial risk/fear of life/person for refoulement.

12. The Adjudicator’s assessment was not so unreasonable or perverse even on an anxious enquiry, and there is no likelihood of successof the applicant’s arguments. Hence, the leave application is refused.

(B. Fung)
Judge of the Court of First Instance
High Court

The Applicant, acting in person