Md Nazmul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 174/2018

[2019] HKCFI 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 174 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 entered Hong Kong legally on 11 August 2005 from China but thereafter overstayed and was arrested by the police on 14 August 2007.  On 15 November 2015 he was convicted of handling stolen goods and received a sentence of imprisonment of 16 months.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 27 August 2007 in respect of torture risk and on 9 October 2013 on all other grounds.  His NRF Supplementary Claim Form was submitted on 1 November 2016.

2.The applicant attended screening interviews on 29 July 2013 (in respect of the torture claim) and 21 December 2016 (on all other grounds).  The Director of Immigration (“the Director”) dismissed his original claim by Notice of Decision on 27 September 2013, when his torture claim was rejected and on 3 January 2017 (“the Decision”), when he was refused on all other grounds.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard his appeal on 31 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 6 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 February 2018 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 2 February 1977, in Shramkandi.  He is divorced.  He was a member of the Awami League (“AL”) and, as such, had fought against members of the Bangladesh Nationalist Party (“BNP”) before the General Election in 2001.  Several members of the BNP had come to his house, when he was not present, and had threatened to beat him up.  Later in 2001, the applicant had got into a fight with some Hindus and had been reported to the police.  Between 2001 and 2005, the applicant lived in Dhaka without incident even though he returned to his home every two to three months to visit family.  However, the applicant nevertheless felt threatened and therefore came to Hong Kong.  In his supplementary claim form, the applicant suggests that his two ex-wives will file a claim against him for torture if he returns (even though it appears he married and divorced his second wife “over the phone” whilst in Hong Kong) and their families will kill him.

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 she 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 the 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.  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 engaged with the applicant who supplemented the information already available.  COI was shown to him and a document relating to divorce in Bangladesh.  He gave further information as to his personal circumstances especially in relation to his two marriages.  Having had the opportunity to learn more about the applicant, the Adjudicator analysed the claim against the facts as supplied by the applicant and explained his reasons for rejecting the appeal in a clear manner.

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 those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

9.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 show 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 eminently reasonable.  The applicant’s case was extremely weak.  

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 the 24^th  day of April 2019.

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