Islam Nazrul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1084/2017 on BabelCite. This High Court CFI judgment was delivered on 2 July 2020.
1. The applicant entered Hong Kong illegally on 15 July 2014 from China and was arrested by the police on the same day. He was transferred to the Immigration Department on 17 July. The applicant submitted a non-refoulement claim by way of written representation on 17 July. He was released upon recognisance on 29 August. His non-refoulement claim form was submitted on 21 March 2016.
Cites 1 case
|
HCAL 1084/2017 [2020] HKCFI 1428 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1084 OF 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following:
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 15 July 2014 from China and was arrested by the police on the same day. He was transferred to the Immigration Department on 17 July. The applicant submitted a non-refoulement claim by way of written representation on 17 July. He was released upon recognisance on 29 August. His non-refoulement claim form was submitted on 21 March 2016. 2.The applicant attended a screening interview on 15 February 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 April 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Ian Wingfield (“the Adjudicator”), heard his appeal on 25 October 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 1 December 2017. 3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 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 1 April 1978, in Comilla. He is married with two children. He claims that he originally owned a pharmacy before going to Saudi Arabia to work as a cleaner between 2004 and 2013. Thereafter he returned to Bangladesh but was not employed. He was a member of the Bangladesh Nationalist Party (“BNP”). In the 2014 General Election, the Awami League (“AL”) retained power. There was considerable friction between members of AL and BNP. The applicant, although an ordinary member only, considered himself a target to be beaten and killed. In early 2014, he was verbally threatened by two members of AL. They told him to leave the BNP. The applicant says that because of this he left his home area with his family and went to Dhaka. He no longer went to BNP meetings and no harm came to them. He returned to his home village for a visit in May 2014, when he was advised by a friend that all opposition members were unsafe from AL. He returned again a month later and was advised that he was not safe in Bangladesh. He decided he would come to Hong Kong but first he travelled to India without incident. He did not feel safe in India and therefore did not seek protection there. At no point did he report his fears or the single incident to the police nor did he report the incident to his BNP local party. 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:
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 Director 7.The applicant seeks to review the decisions of both the Director and the Adjudicator. 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 8.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 as to his personal background and political activities, which were limited to encouraging people not to vote in the General Election. He confirmed that his mother, wife and children were still in Bangladesh and had come to no harm. 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 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 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. The applicant’s case was extremely weak. 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 2nd day of July 2020.
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
|
Cases cited in this judgment