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

HCAL 1113/2017

[2018] HKCFI 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1113 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/absent 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 originally came into Hong Kong illegally by boat on 12 May 2007.  At that time his passport indicated that he had been born on 15 February 1978.  The Applicant lodged a torture claim on 20 March 2008, having been arrested for illegal remaining on 26 February 2008.  He was released upon recognisance on 26 March 2008.  That claim was withdrawn on 13 January 2010 and the Applicant was repatriated to Bangladesh on 1 February 2010.

2.The Applicant re-entered Hong Kong illegally on 15 May 2013 by boat from China and was arrested by the police for illegally remaining on 26 November 2013.  On this occasion his date of birth was recorded in his passport as 15 February 1983.  This is his correct date of birth.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 30 November 2013.  He was released upon recognisance on 2 January 2014.  His NRF claim form was submitted on 26 July 2016.

3.On 18 May 2015, the Applicant was arrested for taking up employment and was sentenced to 15 months’ imprisonment on 14 August 2015.  He was discharged from prison on 24 March 2016 and released upon recognisance once more on 24 March 2016.

4.The Applicant attended a screening interview on 17 August 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 1 September 2016 and by Notice of Further Decision (re BOR 2) on 20 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 8 September 2017.  The Adjudicator of the TCAB, Mr Richard Turnbull, heard him on 17 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 13 December 2017.

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

Background

6.The Applicant is a Bangladeshi national.  He was born in Uttardanpur, Bangladesh.  He received five years of primary education and worked as a truck driver between 2001 and 2003 and later, he worked on the family farm.  He is married with one daughter aged six.  He and his immediate family supported the Awami League (“AL”) but he was not an active member.  He had joined AL in 2001.  Shortly after he joined, his uncle sought to persuade him to join the BNP instead.  When the Applicant refused, his uncle beat him with his fists and a wooden stick resulting in a cut to his leg, which was taken care of by a local doctor.  Approximately six days later, the same uncle threatened the life of the Applicant.  For a short period of time the Applicant lived elsewhere but eventually returned to his home village and worked as a driver and then as a farm worker upon family land from 2002 to 2007 without further incident.  The Applicant left Bangladesh to come to Hong Kong in May 2007 and entered illegally from China.

7.In 2010, the Applicant was informed that his uncle was no longer threatening to harm him and therefore he returned to Bangladesh.  He married and had a daughter in 2012 but was not employed.  The Applicant continued to support AL.  In June 2012, the Applicant got into an argument with the same uncle over ownership of his deceased father’s land and his continued membership of AL.  This led to a fight but neither suffered any injury.  This incident was not reported to the police by the Applicant as it was a family matter.  However, a complaint was brought by his uncle.  He was arrested, prosecuted for common assault and sentenced to two months in prison.  He was released in September 2012 and continued to support AL.  The Applicant decided to leave Bangladesh once more and applied for a passport without difficulty but did not leave at that stage.  In January 2013, there was a further argument between the Applicant and his uncle which concerned the Applicant’s continued support for AL.  This led to another fight in which the uncle and the Applicant were both injured.  The Applicant was arrested once again and detained for two weeks.  He makes no complaint about his treatment during this period.  The Applicant was given bail pending a trial for common assault but was then led to believe a further “false” complaint had been made against him by his uncle and so the Applicant fled.  He eventually left Bangladesh for China on 10 May 2013, from where he entered Hong Kong illegally once more.

The non-refoulement claim

8.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.

9.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

10.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence.  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.  The risk of harm to the Applicant if he were to return to Bangladesh was considered to be low.  The only dispute which the Applicant had was with his uncle.  This was a private matter.  No other parties were involved.  Whilst in police detention, the Applicant had been dealt with properly and he had been the subject of prosecution in accordance with local law.  Whenever he left the area, he had received no further personal threats save by way of hearsay through his mother and no other incidents occurred. 

11.In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon.  He failed to do so.

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 took a similar view to the Director as to the level of risk of harm to the Applicant if he were to be returned and as to the possibility of re-location.  He had some concerns about the Applicant’s veracity but it is clear he directed himself properly and gave proper consideration to both the papers and the submissions of the Applicant.  He explained his reasoning at length.

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.There were no grounds of review.  He says simply that the decisions were wrong and unfair.  The Applicant asks for a re-hearing of his appeal and wishes to submit further documentation but has failed to do so despite the eight months’ time lapse since the submission of his Form 86.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15.Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers 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 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 their determinations, which were open to them on the facts and eminently reasonable.

16.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 7^th day of September 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