Miah Mohammad Shamim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 226/2017

[2018] HKCFI 1723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 226 of 2017

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 the Applicant being present in open court;

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 18 February 2014 from China by boat and was arrested for illegal remaining on 26 February by the police.  He was transferred to the Immigration Department on 27 February and submitted a non-refoulement (“NRF”) claim by way of written representation on 1 March 2014. He was released upon recognisance on 20 March.  His NRF claim form was submitted on 19 September 2015.

2.The Applicant attended a screening interview on 29 October 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 21 January 2016.  The Adjudicator of the TCAB, Mr Hau Cheuk-man, heard him on 17 November 2016 and considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 15 May 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 May 2017 and requested an oral hearing.  The application was adjourned for the determination of the Applicant’s legal aid application which was refused on 29 November 2017.  The Applicant therefore appears in person with the assistance of an interpreter.  The hearing was set down for 19 July 2018.

Background

4.The Applicant is a Bangladeshi national from Changabanda Village, Narsingdi District and was born on 10 May 1990, so he is just 28 years of age.  He is single and educated to level 9.  This matter concerns his political affiliation; a dispute over family land and an outstanding debt.

5.In around 2009, the Applicant joined the student wing of the Bangladesh Nationalist Party (“BNP”), which was in conflict with the student wing of the Awami League (“AL”).  In 2010, the Applicant had become the General Secretary of the student wing and in 2011, he became the General President.  During this period of time the conflict between the two student bodies led to the Applicant being punched, kicked and beaten with a stick on several occasions.  One such occasion resulted in a fractured arm for which the Applicant received herbal treatment, but did not attend a hospital and did not report the incident to the police.  In 2012, the Applicant received death threats from members of AL and was falsely investigated for the murder of a member of the AL but nothing came of it, although the Applicant suggests that an arrest warrant was issued.  At a later protest rally against the government in 2012, the Applicant was shot in the thigh by the local police.  The Applicant made a complaint to the local police but was threatened with allegations of being a terrorist and therefore did not pursue the matter.

6.Meanwhile, in 2011, there had also been a land dispute between the Applicant’s family and a neighbour “S”.  This was at a time when the Applicant’s father was still alive and the head of the family.  A settlement meeting ended with someone hitting S with an axe, which resulted in a serious head wound and hospitalisation.  The Applicant was implicated in the assault (although he did not wield the axe) and, as a result, he fled for two months.  No police action has actually been taken against him for this and the Applicant returned to his home thereafter but clearly there is still bad blood between the parties.  His father had since passed away but his mother still lives in the family home.

7.Also in 2011, at the age of 21, the Applicant maintains that he borrowed money from a friend “M”.  This was to invest in his business which failed and therefore he could not repay the loan.  M demanded repayment but did not inflict any harm upon the Applicant whilst he was in Bangladesh.  Since being in Hong Kong, the Applicant maintains that M has threatened to kill him.

8.The Applicant left Bangladesh on 26 April 2013 and went to China, where he remained for 10 months. He entered Hong Kong on 18 February 2014, because he was told it was good and had a system for seeking protection although he did not immediately do so and was arrested for illegally remaining on 27 February 2014.

The non-refoulement claim

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

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

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”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

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”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10.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

11.The Director analysed the Applicant’s claim and considered a wide range of documentary evidence, which was up to date.  He 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 explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

12.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He carefully considered the Applicant’s case and analysed the facts relied upon, giving the benefit of the doubt to the Applicant but nevertheless confirmed the Director’s Decision.

Leave to apply for judicial review

13.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

14.The Applicant’s affirmation in support of this application for leave, runs to 19 pages which appears to be professionally drafted although there are a number of striking similarities with other papers received by this court on behalf of other applicants. The background events appear to be a rehearsal of the Decision.  The update to this background goes no further than was provided to the Director.

15.The grounds of review can be encapsulated as follows:

(i).  It is submitted that the Adjudicator acted unreasonably in that he:

a. failed to consider relevant and COI research, which had been relied upon by the Director. Having failed to consider it, it follows that he failed to place any weight upon it; and

b. alternatively, the Adjudicator cherry picked the COI which he did take into account, rejecting relevant COI and accepting irrelevant COI and such COI was not up to date.

(ii)  It is submitted that the Adjudicator acted with procedural impropriety and unfairly in that;

a. The Appeal bundle was provided only a few days before the hearing.

b. The bundle was in English and the Applicant had little time to find an interpreter.

c. The Applicant was confused when in the hearing.

d. The TCAB failed to notify him immediately of the ruling.

e. The materials were out of date.

16.The Applicant had an opportunity to put his case, which has not materially differed from his original claim and to answer questions raised by the Adjudicator, which he was able to do.  There is no record within the papers of any complaint being made to the Adjudicator in respect of preparation time; not understanding the procedure to be adopted or that he was given no opportunity to fully advance his case and address any concerns.  The decision of the Adjudicator turned upon a number of factors not just the COI information, which he took into account.  If the Applicant took issue with the available information, he had every opportunity to supplement it.  From submitting his claim form in September 2015 to the TCAB hearing, there was a period of some 13 months in which he could do so.  No further material has been submitted to this court to indicate that the available material was inaccurate.

17.Before the Court, the Applicant admitted to using an address for these proceedings, which was not his address.  It therefore ill behoves him to suggest that he received his appeal bundle late and was thereby prejudiced.  In any event, the Applicant was provided with an opportunity to add to his submissions and did not wish to do so.  He asked the court to consider his application on the papers.

Conclusion

18.I have considered the papers, grounds and submissions carefully and given the opportunity to indicate any fresh material and supplement his case orally.  Which he chose not to do. 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 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 her determination, which was open to her on the facts and eminently reasonable.

19.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 10^th day of August 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