Abdur Rahman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1108/2017

[2018] HKCFI 1829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1108 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 entered Hong Kong on illegally on 5 April 2008 from China by boat and was arrested by the police on the same date and transferred to the Immigration Department on 7 April 2008.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 26 April 2008 and was released upon recognisance on 10 May 2008.  His NRF claim form was submitted on 25 July 2016.

2.The Applicant attended a screening interview on 24 November 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 21 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 4 May 2017.  The Adjudicator of the TCAB, Mr Ian Wingfield, heard him on 22 September 2017.  The Adjudicator refused his appeal on 1 December 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Bangladeshi national and a Muslim.  He was born on 10 January 1964, in Halsa, Bangladesh.  He is married with a wife and two adult daughters and an adult son.  He owns a house and other property in Bangladesh including farm land.  Latterly, he operated a cereal store.

5.The Applicant is an active member of the Bangladeshi Nationalist Party (“BNP”).  This inevitably led to clashes with members of the opposing Awami League (“AL”) in particular someone called Akkel, whom he had known a long time.  On 3 March 2007, the Applicant was attacked by a group of men from AL.  They beat him with bamboo sticks and sprayed red pepper powder into his eyes causing severe pain.  That attack caused him to lose consciousness for two hours and he lost a tooth.  This assault had been witnessed by three local policemen who did nothing to come to his assistance.  Even so, a written report was made to the local police, but when relatives enquired as to the progress of the police investigation, the officers denied any knowledge of the complaint being made.  Just a few days later, whilst the Applicant was still in a clinic recovering from the attack, a fight broke out between members of the two parties outside of the Applicant’s home in which several people were injured.  Although the Applicant did not participate nor did he observe the events, a complaint was filed with the police against the Applicant and his colleagues in respect of that incident and a warrant was issued but the Applicant did not surrender to it.  At the same time, he laid a complaint against Akkel in respect of the earlier attack, which was finally investigated by order of the court but the police found the allegation to be unsubstantiated and the case was dismissed.

6.The Applicant decided to move his family away from the area but remained in the family home himself until he met Akkel in late March and Akkel made death threats against him.  It was only then that he left himself, living elsewhere in Bangladesh for almost a year but eventually leaving Bangladesh to go to India and then to Nepal to stay with relatives for a short while.  The Applicant arrived in Hong Kong on 5 April 2008.  Since that date his family has been harassed, and his son has been so badly beaten that he has gone into hiding.  The Applicant also suggests that false allegations of Rape have been made against his son.

The non-refoulement claim

7.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.

8.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

9.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Bangladesh at present.  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, which he did.  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, intelligible manner in some detail.  He did not believe that Akkel had an intention to kill or seriously harm the Applicant, nor that he wielded any significant influence in the area.  He was also critical of the Applicant failing to surrender to due process over the incident in which the Applicant was in a clinic and clearly could not have been present. As the alleged perpetrators had ultimately been proved innocent, save for one, the Director took the view that the police had acted in accordance with their public duty.

Decision of the Adjudicator

10.The Applicant submitted some further documentation to the TCAB at his hearing and confirmed the truth of the contents of his previous hearing before the Director.  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.  The Adjudicator noted that the Applicant’s affiliation with BNP was not merely motivated by political considerations but that the Applicant was motivated by commercial and social gain as well.  Taking into consideration the situation on the ground at the time of these events in 2007, the Applicant would have had five years to establish local government and police connections whilst the BNP was in power and yet members of AL had been in power in the interim government for just two months at this stage.  The Adjudicator was therefore less convinced by the submission that the police would inevitably support AL.  He did accept the incident of March 2007, but considered that altercation took place against the backdrop of a state of emergency in Bangladesh which no longer exists and that there existed personal animosity between the Applicant and Akkel quite apart from their respective political affiliation.  In coming to his decision to confirm the Decision of the Director, the Adjudicator clearly engaged with the Applicant and explained his reason in detail in a clear and intelligible manner.

Leave to apply for judicial review

11.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

12.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  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

13.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.

14.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 28^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