Case Document

100%Judiciary

HCAL 350/2018

[2020] HKCFI 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 350 OF 2018

BETWEEN

	Habibur Rahman	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 18 May 2009 and subsequently overstayed. It was only after he had exhausted his financial resources that he surrendered to the police and was arrested on 24 February 2013.

2.The applicant originally submitted a torture claim under Part VIIC of the Immigration Ordinance, Cap 115, on 26 February 2013. This was rejected by the Director of Immigration (“the Director”) on 9 September 2013 and his appeal from that decision was dismissed by the Torture Claims Appeal Board (“the TCAB”) on 9 January 2014. These proceedings relate to his non-refoulement (“NRF”) claim by way of written representation on 7 January 2014, which was assessed on all applicable grounds save for risk of torture. His supplementary claim form was submitted on 5 December 2016.

3.The applicant attended a screening interview on 28 December 2016. The Director dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 12 January 2017. He appealed the Decision to the TCAB. The adjudicator of the TCAB, Mr S J Geiser (“the Adjudicator”), heard his appeal on 13 December 2017. The Adjudicator considered his appeal on all applicable grounds and refused his appeal on 8 February 2018.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 March 2018 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

5.The applicant is a Bangladeshi national. He was born on 3 July 1955, in Munshigonj. He is married with two children. His wife and two children live in Chittagong. The applicant’s claim arises because of his membership of the Bangladesh National Party (“BNP”). The applicant maintains that after the Awami League (“AL”) won the election in 2008, he was approached by members of AL, who sought to have him defect from the BNP. When he refused, they threatened to kill him. In 2009, the same group of people approached him and attempted to drag him by the collar but he escaped. He received further verbal threats a few days later and a few days after that, the applicant’s confectionary shop was looted by the same men. The applicant says that he attempted to report these incidents to the police but they were not interested. The applicant then moved to Dhaka as he says he feared for his life and tried to report the matter to the police in Dhaka but they too were not willing to assist. The applicant left Dhaka in May 2009 and came 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 (“the 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 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

8.The Adjudicator analysed the applicant’s claim on all applicable grounds. He had the benefit of all of the papers including those from the original NRF claim. 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. As the applicant had been an ordinary member of the BNP, the Adjudicator did not consider he would be targeted by members of AL if he were to return, especially after such a long period of time. In any event the Adjudicator found the testimony of the applicant to be vague and unreliable.

Leave to apply for judicial review

9.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

10.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 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

11.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. Even taken at their highest, the applicant would not have been able to satisfy the tribunal that his case fell within the relevant heads of claim.

12.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 30^th day of June 2020.

	(Marcus Wong)
	for Registrar, High Court

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.

Notes for the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 30 June 2020 Habibur Rahman Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5923/17/1/207/B730 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2792/16 (formerly RBCZ 2001973/14)