Alam Mohammad Mahbubul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2582/2018

[2020] HKCFI 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2582 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

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 by boat from Shenzhen on 19 August 2013 and was arrested by the police on 19 October 2013.  He was transferred to the Immigration Department on 20 October 2013.  The applicant submitted a non‑refoulement claim by way of written representation on 23 October 2013.  He was released upon recognisance on 27 November 2013.  His non‑refoulement claim form was submitted on 17 August 2015.

2.The applicant attended a screening interview on 22 September 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 12 November 2015 and by Notice of Further Decision (re BOR 2) on 13 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Peter Hui (“the Adjudicator”), heard his appeal on 16 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 7 August 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 16 November 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 1 November 1980, in Bangladesh.  He is Muslim and single.  Although he attained Secondary 10, he was without employment and was supported financially by his family.  In 2005, the applicant joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member.  In 2009, the Awami League (“AL”) took over power.  In 2010, whilst visiting his home town, he was threatened by three members of the AL who sought to persuade him to join their party, although he came to no harm.  Nothing else occurred until late 2011.  At that time, the applicant was staying with a friend who was a member of AL.  At some point he was at a tea shop with his friend and other members of AL when an argument became heated and the applicant was rude about AL.  The argument turned into a fight although the applicant was uninjured.  A month later, the applicant and his friend met some of the people involved in this incident once more and he says that they attacked him and beat him for five minutes.  As a result of this attack he received a stab wound to his hand and to the side of his knee.  They did not require sutures.  The applicant did not report either attack to the Bangladeshi police.  The applicant left Bangladesh for China on 7 April 2012, where he remained for a year before entering Hong Kong illegally on 19 August 2013.

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 (“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.

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 and Further Decision of the Director

7.The applicant seeks to review the decisions of both the Director and the Adjudicator.  In fact, the majority of the applicant’s grounds of review are in respect of the Director and have been summarised below for the sake of completeness.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and as 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[1].

Decision of the Adjudicator

8.There are two main grounds of appeal against the Adjudicator which are indicated below.  These are that he acted unreasonably and unfairly and that he failed to afford the applicant time to obtain evidence.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  For the purpose of that hearing he noted that the applicant had provided supporting documentation for his claim prior to his interview with the Director.  These documents were intended to show that the applicant was a member of BNP and that, as such, he was liable to harassment by the Bangladeshi authorities.  The Director had found that there was nothing to indicate that the applicant would be singled out for such harassment and had not been harassed by the authorities at any stage.  There was also a complaint made to the police of vandalism which was false and which had been made against him to the Bangladeshi police on 5 January 2012, some three months before he left the country.  In fact, the false claim had only come to the attention of the applicant when his family found out about it in 2015 some three years later.  This was despite the fact that the applicant had travelled in and out of Bangladesh in the period after the complaint was made and before he left for China.

9.The hearing before the Adjudicator was held on 16 August 2017 in order to give the applicant the opportunity to adduce fresh evidence if he wished to do so.  However, he indicated did not wish to do so.  There is no record of the applicant asking to submit further evidence.  He correctly identified the issues relied upon by the applicant.  He correctly set out the law and key legal principles including the burden and standard of proof.  He explained his reasoning in some detail with reference to the facts before him.

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.  The primary decision makers in a claim for non‑refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re‑location.  The role of this court in judicial review is not to re‑assess the non‑refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the decision of the Director/Adjudicator, it is for the applicant to 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.The applicant submits:

(i) The Director and Adjudicator acted unreasonably and were unfair.

(ii) The Adjudicator failed to provide sufficient time and opportunity to obtain evidence.

(iii) The Director failed to give sufficient weight to state acquiescence.

(iv) The Director failed to give sufficient weight to the available COI.

12.The grounds of review outlined at subparagraphs (i) and (ii) are the only ones susceptible to judicial review.  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.  He has not stated in what way the Adjudicator was unfair or unreasonable and what evidence it was that he was unable to obtain, nor how that evidence would have advanced his claim.  I have nevertheless considered whether the papers indicate any such ground or explanation for the purposes of considering whether to grant leave.

Conclusion

13.Despite the fact that the applicant submitted unsupported grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have looked in particular inter alia, into the suggestion that the applicant was, in some way, prejudiced by his inability to obtain evidence and not being provided with sufficient time to do so and whether there is any evidence that the Adjudicator acted unfairly or unreasonably in the Wednesbury sense.  I have already noted that the applicant did not ask to submit further evidence before the Adjudicator and I note in this regard that the applicant did not reply to the request for further particulars under BOR 2, when asked for in 2017.  Nor has he indicated what that evidence might be and how he has been prejudiced by not being able to rely upon it.  I have not found any error of law or procedure by the Adjudicator.  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[2].

14.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 12^th day of August 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