Abu Siddique v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 276/2018

[2018] HKCFI 2118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 276 of 2018

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 entered Hong Kong legally on 11 September 2005 and was allowed to remain for three days.  He overstayed and was arrested on 5 April 2009, which resulted in a torture claim on 9 April 2009.  He was released on recognisance on 17 April 2009.  The Duty Lawyer Service (“DLS”) notified the Director of Immigration (“the Director”) of the withdrawal of that application on 3 November 2012.  The Applicant was due to appear in court on 19 December 2012 for the offence of overstaying but failed to appear and a warrant for his arrest was issued.

2.On 10 April 2015, the Applicant made a subsequent application by way of written representation under Article 3 of the Convention Against Torture, Cruel, Inhuman or other Degrading treatment or Punishment (“CIDTP”).  He surrendered to the court on 11 May 2015 and was released on bail on 18 June 2015.  On 23 December 2015, he was released on recognisance.  His supplementary non-refoulement claim form (“NRF”) was submitted on 5 February 2016.  His claim was considered on all applicable grounds.

3.The Applicant attended a screening interview on 17 May 2016.  The Director dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 8 August 2016 and by Notice of Further Decision (re BOR 2) on 27 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 10 August 2016.  The adjudicator of the TCAB, Tam Kwok-wah (“the Adjudicator”), heard his appeal on 22 January 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 14 February 2018.

4.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

5.The Applicant is a Bangladeshi national and is Bengali.  He was born on 25 August 1966 in Dhaka.  He received 12 years of formal education and obtained a Higher Secondary School Certificate and thereafter traded in leather goods.  He is married.  In 1996, the Applicant became a member of the Awami League (“AL”).  At that time, AL was the ruling party in Bangladesh and a person called Salim, was the local MP.  The opposition party was the Bangladesh National Party (“BNP”).  The Applicant alleges that Salim recruited AL members to carry out various criminal activities and operated the local area in a corrupt manner.  The Applicant was not complicit in this.

6.In 2001, the BNP candidate won the local seat in the national elections.  On 7 December 2001, Salim informed the Applicant of his intention to assassinate the new MP.  The Applicant and others were expected to detonate bombs at a BNP organised National Day celebration, which was to be held on 16 December 2001.  The Applicant said nothing about this to the police but instead, on 14 December, he left the area and went to stay some 7 to 8 km away at his sister’s home.  As it happens, the local MP came to know of the conspiracy to assassinate him and the plot was not proceeded with by Salim.  The Applicant stayed away for a month during which time he encountered no trouble.  He returned to his home in mid-January 2002 and for the next 5 to 6 months nothing happened.

7.In June or July 2002, the Applicant was robbed by a group of four men on his way back from collecting a business debt.  His attackers robbed him at gun point, took his money and kidnapped him. He was detained by unknown assailants and beaten three or four times for 30 to 40 minutes each time.  They threatened to kill him but at some point he managed to persuade one of the kidnappers to untie his hands, take the tape off his mouth and was allowed to use the toilet.  He took this opportunity to escape by attacking his captor even though the kidnapper had a shot gun.  The Applicant fled to a friend’s house and was seen by a private doctor. He did not report the matter to the police.  Once he was fit to travel, he moved further away from his home and stayed with a relative whilst he received further private medical attention.  During this time, the Applicant maintains that his wife received continued threats from people associated with Salim who demanded protection money.  The Applicant’s wife did not report these threats, or the demands with menaces, to the police because she feared that if she did then her son would be harmed.

8.Over the next two years, the Applicant returned home on a monthly basis for a very short time and in disguise, as he believed that Salim was searching for him.  Because of that, he says that he changed location several times and experienced no trouble.  It was in mid-2004, that the Applicant met someone who suggested that he go to Hong Kong for his own safety.  He did not act upon that suggestion straight away but in February 2005, the Applicant was chased by seven to eight men whom he believed to be loyal to Salim and although he escaped harm, he decided to follow up on the suggestion of moving to Hong Kong, which he did in September 2005.

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 of the Adjudicator

11.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 noted that there was no evidence in support of the allegations made and that the Applicant had failed to establish his case to the requisite standard.  The Adjudicator also noted that at no stage was there any suggestion of improper action by the state or quasi state organisations.

12.It is of particular import that the Adjudicator noted the timing of both this and the earlier application. The Applicant did not raise a claim immediately upon his arrival in Hong Kong when he had maintained that his entire raison d’etre was to come to Hong Kong for his own safety.  Some four years passed before he was apprehended by the police and only at that stage did he make a claim.  This was some eight years after the triggering event and four years after arrival, when in the intervening period, no harm had befallen his family.

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.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any 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 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 his determinations, which were open to him 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 20^th day of November 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