Alam Mohammed Morshed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL647/2017

[2018] HKCFI 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 647 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong illegally on or about 16 August 2013 and was apprehended by Hong Kong Immigration on 20 August 2013.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 4 October 2013 and was released on recognisance on 23 October 2013.  His NRF claim form was submitted on 13 November 2015.

2.The Applicant attended screening interviews on 12 January and 8 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 18 March 2016 and by Notice of Further Decision (re BOR 2) on 7 April 2017.  The Adjudicator of the TCAB, Mr Wong Chun-kong, heard him on 10 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 25 August 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 September 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Bangladeshi national.  He was born in Shatbariah, Bangladesh on 1 January 1982.  He is a divorcee.  Between 2007 and 2008, the Applicant worked as a supervisor in a shipyard.  Between 2011 and 2013, he worked on the Mainland.  Whilst in Bangladesh, the Applicant was an active member of Jamaat-e-Islami (“Jamaat”).  In that capacity he had numerous altercations with members of the Awami League (“AL”).  In early 2009, he maintains that his house was bombed and upon arrival at the scene he was set upon by 18 to 20 people from AL and attacked, whereupon he became unconscious and was hospitalised.  He had bruising and was given a saline drip and pain medication.  His injuries still required treating many months later.  He says he was then immediately arrested by four policemen and taken to a police station where seven police officers took photographs of him with a gun and knife.  He was detained overnight and restrained by a chain without food or drink.  The following morning, he was taken to court for what appears to be a charge of possession of offensive weapons and was jailed without making any complaint to the Court about how he came to be there.  After three months in jail, his father bribed someone to arrange his escape and he was carried out of the prison in a body bag.  The Applicant said there were fabricated prison documents indicating he had died as a result of torture.

5.After his escape, the Applicant travelled four hours away to Chittagong and stayed with his sister for seven months.  In early 2010, he moved to Dhaka and stayed in numerous places before obtaining a passport and moving to China on 23 December 2011, to run a jewellery and cookware business.  In November 2012, the Applicant returned to Bangladesh, without incident, to meet business partners in Dhaka and to renew his business visa.  He says he did not contact his family.  He returned to China on 3 December 2012, without difficulty.  He says he has not been able to maintain contact with his family since arriving in Hong Kong because he does not know their new telephone number.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii. risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”);

iii. risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); and

iv. risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).

7.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

8.The Director analysed the Applicant’s claim on all applicable grounds on two separate occasions as outlined above.  He considered a wide range of documentary evidence and was willing to consider documentation which the Applicant wished to rely upon to support his allegation that he was a Jamaat member but he did not provide it.  Nor did he provide any support for his alleged detention and faked death which is in conflict with his ability to obtain a passport in his own name and the go to and fro from Bangladesh to the mainland at will.  The Director correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director.  In coming to his decision to reject his claim under the various heads, he acted reasonably and went to great lengths to explain his decision on the merits in a clear and intelligible manner finding that the Applicant had not satisfied the burden upon him of showing the minimum level of severity or of state involvement.  He found this to be a private and not public dispute. In so far as the Further Decision is concerned, the Applicant was given proper notice of the consideration of a claim under BOR 2 and did not provide any further submissions in respect of it.  The Director therefore went ahead and considered it on the existing papers.  He did so in a proper manner.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds and treated the appeal as a rehearing.  He arranged for oral hearings on 29 May, 12 June and 10 August 2017.  The Applicant finally attended on 10 August.  He noted that the Applicant provided no independent evidence in support of his claim and was cynical about his credibility as he appeared to be unable to answer questions out of chronological order.  A substantial part of his testimony appeared to be second hand hearsay and supposition.  Other parts of his current testimony were in conflict with his original claim.  At one stage, the Applicant said he came to Hong Kong for a better life as he had heard that the government would pay for his food and accommodation as well as hospital facilities.  This was despite saying that he had a good business in China and could earn RMB 3,000 per 10 kg of goods.  These were just a few of the comments made by the Adjudicator in respect of the applicant’s testimony to him and the facts upon which he based his decision.  The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof.  He reasonably found that the Applicant had not established that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to Bangladesh.

Leave to apply for judicial review

10.Judicial Review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 17^th day of April 2018.

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