Mused Shekh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 992/2017

[2018] HKCFI 2707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 992 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 illegally on 29 February 2012 and was arrested by the police on 12 April 2012 for illegally remaining.  He was transferred to the Immigration Department on 15 April.  The applicant submitted a torture claim on 16 April 2012 but was not completed as his claim was processed under the Unified Screening Mechanism.  However, on 21 June 2012, the applicant withdrew his claim.  He sought to re-open it by letter of 10 June 2013, which was acceded to.  His NRF claim form was submitted on 6 August 2013 and a supplemental claim form was submitted on 25 July 2014.

2.The applicant attended screening interviews on 14 February 2014 and 6 November 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 December 2014 and by Notice of Further Decision (re BOR 2) on 9 February 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 22 February 2017.  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 23 July 2015 in respect of all heads of claim save for BOR 2 and considered his claim without a hearing in respect of BOR 2.  The Adjudicator refused his appeal on 21 December 2016 and 10 November 2017 in respect of BOR 2.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 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.  He was born on 10 January 1984 in Ghanashyampur.  He initially worked as a salesman but later established his own fashion boutique business.  Prior to commencing his own business, in 2007, the applicant was set upon by members of the Awami League (“AL”).  He was not a member of a political party himself at this time.  He says the reason for this was a loan which his father had taken out to pay for his sister’s wedding and which his father had been unable to repay.  He was kicked and knifed, although his injury was a small slash to his wrist, which did not require suturing.  He did report this incident to the police but he maintains that the police required to be bribed before they would action his complaint.  In 2007, his father obtained a loan for the applicant in order to set up his business.  The applicant was unable to repay the debt and was threatened by the person who had loaned the money.  Later, he was set upon by five to seven AL members who were associated with the loan shark.  He was punched and kicked and cut with a knife on his hand when seeking to defend himself.  The attack itself lasted 10 minutes.  He went to hospital to seek treatment but did not receive sutures.  Once again the police would take no action without a bribe.  As a result of the second attack, the applicant fled to Dhaka where he remained for three to four months but then returned home.  He joined the Bangladesh Nationalist Party (“BNP”) in 2008, as he thought it would give him some form of protection from AL.  In 2010, he was threatened by AL members for his activities on behalf of the BNP.  They said they would kill him unless he stopped canvassing.  The applicant admitted he also took part in clashes with the police during 2010, as a result of an apparent government land take over.  He does not appear to have been personally harmed during these riots but he fled to Dhaka once more at the end of 2011.  Believing that AL had found him there and that he was under threat from the police, the applicant fled to Hong Kong.

The non-refoulement claim

5.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.

6.It is the duty of both 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

7.The Adjudicator analysed the applicant’s claim on all applicable grounds under two separate decisions.  In respect of all matters save for BOR 2, he arranged for an oral hearing and treated the appeal as a rehearing.  The applicant was informed of his rights and the procedure to be adopted.  He was given the opportunity to answer questions and to add to his previous evidence before the Director.  The Adjudicator made reference to relevant COI and applied the correct law to the relevant issues which arose for his consideration in this case.  There was no reason for him to hold a further hearing in respect of the applicant’s claim under BOR 2.

Leave to apply for judicial review

8.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 Decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him.

Grounds of review

9.There were no grounds of review.  The applicant seeks 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

10.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 reasonable.  

11.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 14^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