Sakib Ahmed Alias Md Sakib Ahmed Alias Shohel Md v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 954/2017

[2018] HKCFI 2212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 954 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 legally on 8 October 2001 and was arrested by the police on 5 March 2003 for overstaying.  He was repatriated to Bangladesh on 18 April 2003. He returned to Hong Kong legally on 5 August 2006 and once more overstayed his visa.  He was arrested by the police on 28 September 2012 and on 29 October 2012, he was convicted of breach of condition of stay, possessing a false ID and taking up employment.  He was sentenced to 19 months’ imprisonment.  He was discharged on 17 October 2013.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 11 November 2013.  His NRF claim form was submitted on 2 November 2015.

2.The Applicant attended a screening interview on 11 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2), by Notice of Decision (“the Decision”) on 14 January 2016 and by Notice of Further Decision (re BOR 2) on 10 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard his appeal on 23 November 2016.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  His appeal was refused on 17 November 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 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 on 17 November 1976, in Dhaka and later lived in Fegunasa.  He is single and Bengali.  The Applicant and his family were supporters of the Bangladesh Nationalist Party (“BNP”).  The main opposition at that time was the Awami League (“AL”).  In 2001, whilst in the offices of BNP, the Applicant and two of his colleagues were assaulted by eight AL members with bamboo sticks.  He was assaulted because he refused to join AL.  The incident lasted about an hour.  The Applicant lost consciousness and received a head wound, which was treated in hospital.  He was discharged the next day.  This incident was reported to the local police station but the police were reluctant to become involved in political disputes.  Later that year, the Applicant’s father was approached by AL members who threatened to kill the Applicant if he did not stop working for the BNP.  As a result, his father told the Applicant to leave Bangladesh before the upcoming November 2001 election.

5.The Applicant arranged to travel to Korea via Hong Kong.  Whilst in Hong Kong, he travelled to China but he says in the interim, the travel agent disappeared with his passport and air ticket.  As a result, he remained in Hong Kong and stayed with a friend.  The Applicant was repatriated in April 2003 and went to work for his father.  Nothing happened until February 2005, when he was accosted by 13 to 14 people carrying iron rods and hockey sticks.  He was punched and kicked and received wounds to his elbows from a knife.  The Applicant was taken to hospital and one of his wounds received five stitches.  He was discharged after two days.  According to the Applicant, he had been attacked because he had re‑joined BNP.  His father attempted to report the incident but the police refused to register it as he was from the opposition party.  In March 2005, the Applicant went to Dhaka to start his own business with goods supplied from Hong Kong.  That was the reason for his trip to Hong Kong in April 2005.  He travelled to and fro between Hong Kong and Bangladesh without incident for over a year.  In July 2006, the Applicant’s father received further death threats directed at his son from AL members.  At the end of July 2006, the Applicant and his friends were attacked whilst building a stage for a BNP rally.  On this occasion the Applicant was not hurt.  He returned to Dhaka but his father continued to receive threats directed at his son, including threats to make up a criminal case against him.  Although his father went to the police to report these threats, they were not interested.  The Applicant’s family took the view that BNP would not allow him to leave them and that AL would always be threatening him and therefore the Applicant left Bangladesh to come to Hong Kong.

The non-refoulement claim

6.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.

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.As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

9.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 explained the process to the applicant and gave him an opportunity to answer his concerns.  No fresh evidence was submitted.  The Adjudicator noted there were only two incidents in which the Applicant had been harmed and that his injuries, even at their highest, were not serious considering the attackers had weapons and could have inflicted far greater injury if they had wished to do so.  Of significance was the fact that the Applicant’s father was far more prominent in the BNP movement and yet he had not been harmed at all.  He had not been able to substantiate his claim to the relevant standard.

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 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

12.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 determination, which was open to him 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 4^th day of December 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