Mamunur Rashid v. Torture Claims Appeal Board

HCAL 1273/2019

[2024] HKCFI 2568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1273 OF 2019

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

(1)   Extension of time for the application for leave to apply for Judicial Review be granted;

(2)   Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 January 2018 be granted;

(3)   The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)   The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Bangladesh who entered Hong Kong illegally on 21 April 2007 and was arrested by police on 30 April 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by some local gangsters for having reported to the police of their illegal activities and/or discrimination and persecution by the Muslim community over his HIV positive medical situation and/or the risk of not being able to access or receive proper or adequate medical treatments for his such condition in his home country which would amount to cruel or inhuman treatment, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases.  He was subsequently released on recognizance pending the determination of his claim.

Factual Background of Non-refoulement Claim

2.The Applicant was born and raised in Tejgaon, District Dhaka, Bangladesh. After leaving school he was unable to find work and therefore spent most of his time hanging out with a local group whom he later learnt to be involved in unlawful activities including extortions, kidnapping and robberies, and eventually the group persuaded the Applicant to participate in some of their criminal activities.

3.One day in October 2004 the Applicant was told that a member of the group with whom he was particularly close by the name of Sumon had been murdered by other members over some dispute, and when the Applicant confronted those members, he was threatened and beaten by them including being cut with a knife, and was warned not to raise any further issue with them or else he would be killed before he was eventually released to seek medical treatments.

4.Some 10 or 12 days later the Applicant made an anonymously call to the police and provided them with details of the murder of Sumon which subsequently led to the arrest of those gang members, but later when they were released on bail and were looking for him, the Applicant fled to Mymemeshing to hide in his aunt’s place, and on 31 December 2004 he departed Bangladesh for Hong Kong where he overstayed, and upon his subsequent arrest by the police he was then repatriated to Bangladesh on 16 October 2006.

5.After returning to his home district in Bangladesh, the Applicant learnt that those gang members had since been discharged from prison and were looking to kill him in revenge, he therefore on 25 March 2007 again departed Bangladesh for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his torture claim, and while being released on recognizance pending the determination of his claim, he was in 2008 diagnosed of being HIV positive, for which he had been receiving regular medical follow-ups and treatments at the local hospitals under the Department of Health, and of which he included as an additional basis for his non-refoulement claim of fear of being discriminated and persecuted by the Muslim community and/or of not being able to receive the same or similar medical treatments if refouled to Bangladesh. 

6.After his torture claim was rejected by the Immigration Department, the Applicant then sought non-refoulement claim for protection on the same bases, for which he completed a Supplementary Claim Form (“SCF”) on 29 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Decision of Director of Immigration 

7.By a Notice of Decision dated 19 August 2016 and a Notice of Further Decision dated 4 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and 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”).

8.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from that group of gangsters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for those gangsters to locate him, while objective COI also show that adequate HIV treatment is available in Bangladesh especially in Dhaka where the Applicant had resided before, and with HIV/AIDS treatment and prevention programs in place since 1985 and with NGOs to provide support and assistance to patients, while efforts have also been made by the Bangladeshi government to reduce stigma and discriminations towards HIV positive patients in the country that it is not accepted that the Applicant would not have access to proper medical treatments or that he would face any discrimination if refouled to Bangladesh.

Appeal to Torture Claims Appeal Board

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 11 October 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  It is of note that prior to the hearing the Board directed the Applicant to provide up-to-date medical report from his Hong Kong physician relating to his alleged HIV status, but for which he claimed to be unable to afford, and could only produce a letter or memo from his doctor containing some information which were subsequently relied upon by the Board in its assessment of his condition.

10.By a decision dated 23 January 2018 the Board dismissed his appeal and also confirmed the Director’s decisions.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as to his claim of fear of harm from those local gangsters over his report of their crime to the police as fundamentally different from what he had earlier given to the Director and that it was extremely vague and evasive that no credence whatsoever can be given to such claim that it rejected the credibility of his claim of fear of such harm that caused him to leave his country to come to Hong Kong to seek protection, while his claim of being HIV positive and has since 2008 been receiving regular medical treatments in Hong Kong is accepted as factually true and correct, that on the basis of the medical evidence submitted by him as well as the health information from the UK-based National Aids Manual (“NAM”) and other available COI that his present medical condition has remained stable under his current medication received in Hong Kong that he would require only regular check-ups and would not be in need of any urgent medical intervention, and that current relevant COI show that in Bangladesh as from 2012 the majority of HIV positive adults have been receiving Highly Active Antiretroviral Therapy (“HAART”) for free for all those who needed it within the country, and that in 2014 a partnership between the government, NGOs and civil society has resulted in a network of more than 300 testing clinics, counselling centers and support organizations to which the Applicant can access and to continue to receive his medication and medical treatments upon his return to Bangladesh that it was satisfied that he will be able to continue his HAART regiment in Bangladesh and faces no immediate need for medical intervention, and as he displays no outward symptoms identifying him as HIV positive, and while it is accepted that he may face some social stigma and/or discrimination and shunning if he reveals his HIV status to his family, friends or colleagues, there is nothing to stop him from accessing the services provided by those organizations for help and support that it is not accepted that he will face any real risk of harm under any of the applicable grounds upon his return to Bangladesh, and concluded that his claim for non-refoulement protection in Hong Kong failed on all the applicable grounds.

Leave Application for Judicial Review    

11.On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form subsequently as amended with the assistance of some unidentified NGO he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)   That the Adjudicator made material errors of fact in assessing the availability of medical treatment for HIV/AIDS in Bangladesh;

(2)   That the Adjudicator’s finding that medical treatment would be available to the Applicant in Bangladesh was irrational, being founded on material errors of fact;

(3)   That the Adjudicator acted in a procedurally unfair manner by (a) failing to take adequate steps to obtain accurate and up-to-date information on the availability of medical treatment in Bangladesh and/or (b) failing to obtain a medical report regarding the status of the Applicant’s condition and/or to assist in obtaining or seeking legal representation in his appeal;

(4)   That the Adjudicator erred in law by stating that the Applicant can reasonably be expected to hide his HIV status to avoid the risk of persecution; and

(5)   That the Adjudicator made irrational findings and/or failed to take into account relevant considerations in his assessment of Persecution Risk.     

Late Application

12.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.As the last day of the three-month period for him to file his Form 86 fell on 23 April 2018, the Applicant was therefore more than 1 year late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

Delay and Cause

14.In the Applicant’s case, a delay of more than 1 year must be considered as very substantial and inordinate, for which he explained in his Form and at the hearing of his application that he never received the decision in the mail, and that it was only on 18 April 2019 when he made his regular report to the Immigration Department on his recognizance that he was informed by his immigration officer of the Board’s decision that his appeal was already dismissed on 23 January 2018 when it was only then that he was given a copy thereof, but whereupon he was immediately detained by the Immigration Department, and was subsequently transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was eventually able to seek legal assistance to make his present application on 10 May 2019, but by then he was already seriously out of time.

15.The record shows that the decision was sent by the Board on 23 January 2018 to the Applicant with a covering letter to an address at Room 2, 8/F, No. 137 Nam Cheong Street, Sham Shui Po, Kowloon.  It is not clear whether it had been returned through undelivered post, but an examination of the available correspondences between the Director and the Board with the Applicant at the material time shows that his then stated address was in fact Room 2, 7/F, No. 137 Nam Cheong Street, Sham Shui Po, Kowloon.

16.It appears therefore that the Board had mistakenly sent the decision to the Applicant at 8/F instead of 7/F of his Sham Shui Po address which goes to support his assertion of never receiving the decision in the mail until more than 1 year later on 18 April 2019 when he reported to the Immigration Department on his recognizance.  As there is no information before the Court of whether the decision had been returned through undelivered post, or whether the Board had subsequently rectified its mistake by re-sending the decision to the Applicant at the correct address, I am prepared to give the Applicant the benefit of the doubt as to his explanation, but it seems to me also his duty to regularly check with the Board as to the progress of his appeal at all material time rather than passively waiting for the decision to arrive one day in the mail.

Merits of Intended Application              

17.Be that as it may, I shall proceed to consider the merits, if any, of his intended application, by referring to his proposed grounds for his intended challenge as stated above, of which there are none against the rejection of his claimed risk of being harmed or killed by those local gangsters, and that all of them only concern the Board’s findings and assessment of his claim relating to his HIV/AIDS situation which he fears of being denied the necessary treatments that he has been receiving in Hong Kong if refouled to Bangladesh that he argues would amount to torture or inhuman or degrading treatment thereby violating his BOR 3 right, and that he also fears of being discriminated or persecuted by the Muslim community in general in his home country for being HIV positive.

Board’s Determination

18.Firstly, it is of note that the Board did not take issue with the Applicant’s HIV status or the medical treatments that he has been receiving in Hong Kong, as it so stated in its findings and reasons in the decision, starting with its assessment of the Applicant’s condition on the basis of the information available before the Board as follows:

“28. Dealing first with the question of the appellant’s HIV status, I note he produced a number of documents before the hearing from various health authorities in Hong Kong in relation to his treatment here. There are, for example, hand written medical records from the Centre for Health Protection covering the period from November 2008 to April 2016. There are also further printed records, produced by the Department of Health in Hong Kong, the final date of which relates to May 2016. These records have not been challenged and since they appear to be produced by reputable medical organizations in Hong Kong and by the Hong Kong Department of Health, I see no reason not to place weight upon them and to accept the information contained therein.

29. That information confirms that the appellant was diagnosed as HIV positive in 2008, that he contracted the virus through heterosexual transmission and that he has been receiving highly active antiretroviral therapy (“HAART”) for a number of years. In May 2016 the appellant was receiving daily or twice daily doses of the following medications: Norvir, Zoviraz, Prezista and Combivir. According to those records, in April 2016 the appellant’s viral load rebounded to 170 and his CD4 count was 329.

30. In compliance with my directions during the hearing the appellant subsequently submitted up-to-date health information from his treating physician, Dr Chun Kwan Bonnie Wong at the Hong Kong Integrated Treatment Centre.  Dr Wong confirms that the appellant continue to receive HAART therapy, now in the form of Combivir, Ritonavir and Darunavir.  His viral load has been undetectable since August 2016 and his CD4 count was 386 in August this year.  I will deal with the question of future risk to the appellant in Bangladesh as a result of his HIV status below.”  

19.Having formed the view that the Applicant’s condition was under control by the treatments which he had been receiving in Hong Kong, the Board proceeded to consider the available COI including the NAM website as to the HIV health provision available in Bangladesh, and found no reason to suggest that the Applicant would not be able to receive the same or similar medications and treatments that he has been receiving in Hong Kong upon his return to Bangladesh:

“43. In addition to the reports already referred to by the respondent in the refusal letter and cited therein, I have also had regard to additional information, the gist of which was put to the appellant during the hearing. In particular, I have had regard to the UK-based “National Aids Manual” (“NAM”), a highly regarded, oft-consulted and professional information portal which sets out not only health information about HIV itself, but also describes provision in a variety of countries around the world, including Bangladesh.

44. In assessing that health provision, I consider it to be important to have an updated view of the appellant’s own health since that will dictate whether his needs are urgent or not. At the time of his recent medical report he had an undetectable viral load and a CD4 count of 386. According to the health information contained on the NAM website, that suggests that the virus is under control, he cannot pass on the virus to anyone else, even by direct sexual contact, and he is not at real risk of opportunistic infection; that risk essentially being serious when the CD4 count falls below 200. This being the case, the appellant’s medical needs could not be said to be urgent.

45. The consequence of that, again looking at the health information contained on the NAM website, would be that if the appellant could continue to receive his medication he would require only regular check-ups as he now appears to receive in Hong Kong and would not be in need of any urgent medical intervention. He displays no symptoms identifying him as HIV positive.

46. The respondent relies upon an article from the Journal of Health, Population and Nutrition dated September 2008, which describes the HIV programme in Bangladesh at that time. It confirms that the government took early steps to combat the expected HIV epidemic and established widespread operations, integrated into the general health service and funded by the Ministry of health, the global fund for AIDS, the World Bank, USAID and other organizations.

47. Furthermore, the respondent refers to a progress report relating to Bangladesh from UNAIDS of 2012, which appears to be the most recent report relating to Bangladesh prepared by that organization. That report states that in 2012 around 84% of adults with HIV were receiving HAART as a result of a combined effort of the government health Department and local NGOs and civil society organizations.

48. Various news reports from reliable news agencies in Bangladesh, including “BD News 24” reported that from December 2012 HAART therapy was being made available for free for all those who needed it in Bangladesh. This news is also reported on the NAM website. A further report also cited on the NAM website, dating from 2014, confirms that a partnership between the government, NGOs and civil society has resulted in a network of more than 300 testing clinics, counselling centres and support organizations.

49. Importantly, the NAM website sets out the details of five key organizations providing services to people who are HIV positive in the capital city from where the appellant comes. These organizations provide not only health and counselling services, but also income generating assistance, drop-in services and a wide variety of other assistance. For example, the “Ashor Alo” organization in Dhaka provides testing, treatment, social networks, income generating assistance, capacity building initiatives and a help-line. The executive director of that organization confirmed the provision of free HAART therapy from late 2012 and welcomed it. The “National Network of PL-HIV” provides similar services and additional social support, and networks of those living with the virus in Bangladesh. Three other organizations in Dhaka provide similar services and this does not take into account hospital services.

50. It was put to the appellant that he could access these services and continue to receive his medication. His view was that this would not be possible and he was afraid that he would be unable to continue his medication and would die within one or two years. He could not, however, provide any reason to suggest why he would not be able to access these services and the information set out above suggests to me, particularly given that some of the key civil society organizations providing medical services are based in the capital city to which the appellant would return, that he would be able to access these services.

51. Furthermore, although research did not reveal the precise names of all of the HAART drugs which are regularly dispensed in Bangladesh, there is no reason to suppose the appellant would not continue to receive either the same drugs or other appropriate and suitable medication given that such medication is freely available and that as long ago as 2012, 84% of HIV positive adults were in receipt of it.

52. Since the appellant’s medical needs are not urgent, his HIV is under control, he is asymptomatic, has an undetectable viral load and a CD4 count indicative of a lack of susceptibility to opportunistic infection, I conclude it is very likely indeed that he will be able to continue his HAART regime in Bangladesh in good time and faces no immediate need for medical intervention.  I further conclude it is likely that he will have free access to the required medication and that he will be able to receive the same or similar regular check-ups as he receives in Hong Kong, most likely from one of the civil society organizations referred to above in the capital city.”  

20.The Board then went on to consider the relevant case law from the European Court of Human Rights (“ECtHR”), and concluded that the refoulement of the Applicant in his medical conditions to Bangladesh would not violate his right to life or those under the BOR 3 ground in its decision as follows:

“67. There is … the question of whether returning the appellant to Bangladesh would engage his right to life or the provisions of BOR 3 on the basis of reduced or limited access to healthcare. In that regard, I have taken into consideration a line of cases from the European Court of human Rights, including: D v UK (1997) 24 EHRR 423, N v UK (2008) 47 EHRR 885 and most recently Paposhvilli v Belgium (2016) Case 41738/10. The respondent also relied on a number of cases which derive their conclusions from these three key cases, but I intend to refer to the leading cases from which this guidance was drawn.

68. The principles established in these cases are that there is in general no right for a person receiving medical treatment to remain in the host country and that returning them to their own country will not involve inhuman or degrading treatment or a breach of their right to life even where the standard of healthcare in the host State is superior to that in the returning state. It will only be in exceptional circumstances, such as imminent death in degrading circumstances, a complete inability to access effective health service at all, or a significant reduction in life expectancy that the relevant articles would be engaged.

69. For example, as stated by the European Court in the most recent case of Paposhvilli v Belgium: “para 183] The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”

70. As already established above, however, the appellant is not at imminent risk of death and is, for all intents and purposes, healthy.  As long as he continues to receive his HAART therapy, there is no reason to suppose on the evidence before me that situation would not continue.  Moreover, as already set out above, it is very likely the appellant will be able to access his therapy and that his medication would be free and available from a variety of specific organizations in the capital city.  In those circumstances, he does not face significantly reduced life expectancy or an imminent death and he would have access to the relevant medical care.  Even if medical care in Bangladesh is not at an equivalent standard to that in Hong Kong, therefore, his return would nevertheless not involve inhuman or degrading treatment or a risk to his right to life.” 

21.Given that both the Applicant and the Board did refer to and rely on the principles from the same line of authorities in relation to claims under BOR 3 to resist removal or return by reference to ill-health, it would be relevant for the Court to first chart the development of the relevant and latest jurisprudence in the ECtHR and the UK Supreme Court (“UKSC”) in relation to such claims, of which Lord Wilson of the latter in the recent case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 in commencing the judgment of the Court described as one of the most controversial questions which the law of human rights can generate, starting perhaps with the decision of the ECtHR in D v United Kingdom (1997) 24 EHRR 423.

Relevant Case-Law and Applicable Principles

22.In that case the applicant was a citizen of St Kitts, an island in the West Indies, who was earlier convicted of smuggling cocaine into the UK, and upon his release from prison the Secretary of States sought to deport him who was in essence then dying from an advanced stage of AIDS with life expectancy assessed at no more than a year, but that there was no drug treatment for AIDS available in St Kitts, the ECtHR held that the case was characterized by “very exceptional circumstances” that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support ([52] – [53]) that his suffering would attain the minimum level of severity required by Article 3 that there were compelling humanitarian considerations that weighted against his expulsion ([54]).

23.The next relevant case is the decision of the UK House of Lords in N v Secretary for the Home Department [2005] UKHL 31, [2005] 2 AC 296 which involved a citizen of Uganda whose claim for asylum was rejected and the Secretary of State sought to return her to Uganda, but she was HIV positive and was suffering from various AIDS illnesses, and subsequently with antiretroviral therapy (“ART”) and chemotherapy her condition had been stabilized, and if the administration of such treatments were to continue in UK, she would be likely to live for decades, but her ability to access to appropriate medication and facilities in Uganda was problematic, and the prospect of her survival there for more than 2 years was bleak, yet the House of Lords held that in the light of her stable condition that her claim under Article 3 was dismissed.

24.The third case is the decision of the ECtHR in N v United Kingdom (2008) 47 EHRR 39 where the applicant in the N case in the House of Lords above again relied on Article 3 but her application was also rejected, as the ECtHR observed that since the judgment in the D case 11 years previously the court had never held that removal of an alien would violate Article 3 on grounds of ill-health, that the applicant in the D case had appeared to be close to death and that a reduction of life expectancy in the event of removal had never in itself been held to amount to a violation of Article 3, and that while there might be other very exceptional cases in which humanitarian considerations are equally compelling, the high threshold for violation set in the D case should be maintained ([42] – [43]).

25.Similarly in Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR, where the applicant was a citizen of Cameroon who was also HIV positive but in stable condition with the administration of ART in Belgium, the ECtHR held that her return to Cameroon would not violate her rights under Article 3, as it observed that the case was indistinguishable from the decision in the N case even though it was improbable that the applicant would obtain the necessary medication in Cameroon and that without it her survival in the short or medium term was in doubt.                   

26.Then came the case of Paposhvili v Belgium (2017) Imm AR 867 in which the applicant was a citizen of Georgia who had lived in Belgium with his wife and family for 18 years, but his application for asylum was rejected after he had been convicted of various criminal offences including robbery and extortion, and when the Belgium government sought to deport him to Georgia, he applied to the ECtHR on medical grounds under Article 3 due to his grave ill-health including chronic lymphocytic leukemia, active pulmonary tuberculosis and hepatitis C, and from which he died following his hearing and during the Court’s deliberation, but the Grand Chamber of the ECtHR decided to proceed to judgment which it delivered on 13 December 2016 and held that his deportation by the Belgium government would have violated his rights under Article 3 upon reiterating the applicable general principles and observing that the authorities should not be prevented from scrutinizing an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage directly or indirectly the responsibility of the public authorities of that country, such as the expulsion of aliens who are seriously ill, as the Court elaborated as follows:

“172. The Court reiterates that Contracting States have the right as a matter of

well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see N. v the United Kingdom, cited above, § 30). In the context of Article 3, this line of authority began with the case of Vilvarajah and Others v. the United Kingdom (30 October 1991, § 102, Series A no. 215).

173. Nevertheless, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 of the Convention where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (see Saadi, cited above, § 125; M.S.S. v. Belgium and Greece, cited above, § 365; Tarakhel, cited above, § 93; and F.G. v. Sweden, cited above, § 111).

174. The prohibition under Article 3 of the Convention does not relate to all instances of ill-treatment. Such treatment has to attain a minimum level of severity if it is to fall within the scope of that Article. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see N. v. the United Kingdom, cited above, § 29; see also M.S.S. v. Belgium and Greece, cited above, § 219; Tarakhel, cited above, § 94; and Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).

175. The Court further observes that it has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty, cited above, § 52). However, it is not prevented from scrutinizing an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country (see D. v. the United Kingdom, cited above, § 49).

176. In two cases concerning the expulsion by the United Kingdom of aliens who were seriously ill, the Court based its findings on the general principles outlined above (see paragraphs 172-74 above). In both cases the Court proceeded on the premise that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the returning State (see D. v. the United Kingdom, cited above, § 54, and N. v. the United Kingdom, cited above, § 42).

177. In D. v. the United Kingdom (cited above), which concerned the decision taken by the United Kingdom authorities to expel to St Kitts an alien who was suffering from Aids, the Court considered that the applicant’s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment (see D. v. the United Kingdom, cited above, § 53). It found that the case was characterized by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support (ibid., §§ 52-53). Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant’s expulsion (ibid., § 54).

178. In the case of N. v. the United Kingdom, which concerned the removal of a Ugandan national who was suffering from Aids to her country of origin, the Court, in examining whether the circumstances of the case attained the level of severity required by Article 3 of the Convention, observed that neither the decision to remove an alien who was suffering from a serious illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State, nor the fact that the individual’s circumstances, including his or her life expectancy, would be significantly reduced, constituted in themselves “exceptional” circumstances sufficient to give rise to a breach of Article 3 (see N. v. the United Kingdom, cited above, § 42). In the Court’s view, it was important to avoid upsetting the fair balance inherent in the whole of the Convention between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. A finding to the contrary would place too great a burden on States by obliging them to alleviate the disparities between their health-care system and the level of treatment available in the third country concerned through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction (ibid., § 44). Rather, regard should be had to the fact that the applicant’s condition was not critical and was stable as a result of the antiretroviral treatment she had received was not expected to deteriorate as long as she continued to take the treatment she needed (ibid., § 47). The Court also deemed it necessary to take account of the fact that the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would able to obtain access to medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of Aids worldwide (ibid., § 50). The Court concluded that the implementation of the decision to remove the applicant would not give rise to a violation of Article 3 of the Convention (ibid., § 51). Nevertheless, it specified that, in addition to situations of the kind addressed in D. v. the United Kingdom in which death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling (see D. v. the United Kingdom, cited above, § 43). An examination of the case-law subsequent to N. v. the United Kingdom has not revealed any such examples.

179. The Court has applied the case-law established in N. v.  the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning aliens who were HIV positive (see, among other authorities, E.O. v. Italy (dec.), no. 34724/10, 10 May 2012) or who suffered from other serious physical illnesses (see, among other authorities, V.S. and Others v. France (dec.), no. 35226/11, 25 November 2014) or  mental illnesses (see, among other authorities, Kochieva and Others v. Sweden (dec.), no. 75203/10, 7 April 2013, and Khachatryan v. Belgium (dec.), no. 72597/10, 7 April 2015).  Several judgments have applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011; S.H.H. v. the United Kingdom, no. 60367/10, 29 January 2013; Tatar, cited above; and A.S. v. Switzerland, no. 39350/13, 30 June 2015).”           

27.The Grand Chamber concluded from the line of authorities that situations which correspond to a high threshold for the application under Article 3 of the Convention in cases where the applicant facing expulsion is close to death, and found it necessary to reiterate that it is essential that the Convention be interpreted and applied in a manner which renders its rights practical and effective and not theoretical or illusory, and went on to clarify the guidance and approach regarding those cases contemplated in D v United Kingdom, as well as those very exceptional cases referred to in N v United Kingdom as depriving aliens who are seriously ill but whose condition is less critical of the benefit of the provision of Article 3:

“181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision.  As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the cases contemplated in D. v. the United Kingdom.

182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012), the Court is of the view that the approach adopted hitherto should be clarified.

183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.

184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens.  By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint Article 3.  The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights.  This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 117-18).

185. Accordingly, in cases of this kind, the authorities’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012; Tarakhel, cited above, § 104; and F.G. v. Sweden, cited above, §§ 117-18).”   

28.The Grand Chamber then reiterated the underlying duties for conducting the appropriate procedures and examination of applications of this type by the returning State - the expulsion of an individual which would result in him or her being exposed to a risk of treatment prohibited by Article 3 of the Convention as follows:

“186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection, it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see, in particular, Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts)).

187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120).  The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105).  The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organization or of reputable non-governmental organizations and the medical certificates concerning the person in question.”

29.The Grand Chamber proceeded to observe the factors which should be taken into consideration by the authorities in the returning country as to whether the care generally available in the receiving country is sufficient and appropriate in practice for the treatment of the applicant’s illness so as not to expose him or her to a risk of treatment contrary to Article 3 of the Convention:   

“188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. Ac regard the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).

192. The Court emphasizes that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State.  Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its healthcare system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction.  The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.”  

30.In applying these principles the Grand Chamber found that although the Belgium Aliens Office’s medical adviser had issued several opinions regarding the applicant’s state of health based on the medical certificates provided by the applicant, they were not examined either by the Aliens Office or the Aliens Appeals Board from the perspective of Article 3 of the Convention in the course of the proceedings concerning regularization on medical grounds, nor was the Applicant’s medical situation examined in the context of the proceedings concerning his removal, and concluded that in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, the information available to those authorities was insufficient for them to conclude that the applicant if returned to Georgia would not have run a real and concrete risk of treatment contrary to Article 3 of the Convention, and that it followed that if the applicant had been returned to Georgia without these factors being assessed, there would have been a violation of Article 3 ([200] – [207]).

31.Such procedural requirements on the part of the applicant and the returning country or State then came into consideration and observations by the UKSC in the AM case noted above (para 21), and in which the Court applied in its decision to depart from the judgment of the House of Lord in the N case.

32.AM was a citizen of Zimbabwe who arrived in the UK in 2000 and was granted lawful residency in 2004 when he was at about the same time diagnosed with HIV, and for which he subsequently started taking ART which increased his CD4 count.  In 2009 he was sentenced to 9 years imprisonment for several criminal offences and upon his release from prison, the Secretary of State sought to deport him to Zimbabwe, and after his claim under Article 8 of the Convention was rejected by the Immigration Tribunals and his subsequent appeal to the Court of Appeal failed, the applicant raised his claim under Article 3 that in Zimbabwe he would be unable to continue with his HIV treatment, as while a range of anti-retroviral medications were available, the only one he was responding well to was not, and without access to this medication, his CD4 blood count would fall again, leaving him vulnerable to infections which if untreated would lead to death.

33.The UKSC by its judgment dated 29 April 2020 allowed the appeal and ruled that removing AM to Zimbabwe where he would not be able to access the medication he needed would be in breach of Article 3, and remitted his claim to the Upper Tribunal to be heard on up-to-date evidence as properly directed to the Grand Chamber’s substantive and procedural requirements, and gave guidance on how the Paposhvili case should be applied by the English courts by re-visiting the development of the jurisprudence in the ECtHR as well as the UK domestic courts in relation to claims under Article 3 to resist return by reference to ill-health, and then embarked on what it considered as the ECtHR’s new focus on the existence and accessibility of appropriate treatment in the receiving state and the procedural requirements of Article 3 in that regard in the Paposhvili case as follows:

“23. Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held

(a) in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;

(b) in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organizations about treatment in the receiving state;

(c) in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3;

(d) in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and

(e) in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.

These procedural obligations on returning state, at first glance very onerous, will require study in paras 32 and 33 below.

24. It was the failure of Belgium to discharge the suggested procedural obligations which precipitated the Grand Chamber’s conclusion in the Paposhvili case that deportation of the applicant to Georgia would have violated his rights under article 3. It seems from para 197 that it treated the doctor’s evidence as “capable of demonstrating that there [were] substantial grounds for believing” that deportation would expose him to a real risk of treatment contrary to article 3. Belgium’s procedural obligations were therefore engaged but not discharged: see para 205.”

34.The UKSC then went on to make the following observations of those procedural requirements suggested in the Paposhvili case and explained its decision to depart from the N case as follows:

“32. The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarized in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements.  Yet observations on them may even now be made with reasonable confidence.  The basic principle is that, if you allege a breach of your rights, it is for you to establish it.  But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179.  It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle.  The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated.  It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them.  But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross.  For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment.  All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3.  This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination on the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 00397 (IAC).  Indeed, as the tribunal proceeded to explain in para 123.  The arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and,.  If so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal.

33. In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarized at para 23(b) to (e) above.  The premise behind the guidance, surely reasonable, is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability if any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state.  What will most surprise the first-time reader of the grand Chamber’s judgment is the reference in para 187 to the suggested obligation on the returning state to dispel “any” doubts raised by the applicant’s evidence.  But, when the reader reaches para 191 and notes the reference, in precisely the same context, to “serious doubts”, he will realise that “any” doubts in para 187 means any serious doubts.  For proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

34. This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case.  Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it.  Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate.  But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279.  In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case.  For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above.  In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart.”     

35.As anticipated by the UKSC noted above ([32]), the Grand Chamber of the ECtHR in its judgment on the subsequent case of Savran v Denmark (Application no. 57467/15) delivered on 7 December 2021 did shed light on the extent of the procedural requirements of Article 3 pronounced by it in the Paposhvili case, and summarized by the UKSC in the AM case at [23] of its judgment.

36.In the Savran case the applicant, a Turkish national diagnosed with paranoid schizophrenia entered Denmark in 1991 when he was 6 years old.  In 2008 he was convicted of assault and exempt from punishment on account of his mental illness, and was committed to forensic psychiatric care instead.  In 2009 he was made subject to an expulsion order with a permanent ban on re-entry. In 2014 the City Court held that, regardless of the nature and gravity of the crime committed, the applicant’s health made it conclusively inappropriate to enforce the expulsion order.  In 2015 that decision as reversed by the High Court and the applicant was subsequently refused leave to appeal and was deported to Turkey.

37.In a judgment of 1 October 2019, a Chamber of the ECtHR found, by a majority vote, that the applicant’s expulsion would constitute a violation of Article 3 should it be carried out without the Danish authorities having obtained individual and sufficient assurance that appropriate treatment would be available.

38.On 20 January 2020 the case was referred to the Grand Chamber of the ECtHR at the Government’s request, and in its judgment delivered on 7 December 2021, the Grand Chamber reaffirmed the standard and principles as established in the Paposhvili case as follows:

“133. Having regard to the reasoning of the Chamber and the submissions of the parties and the third parties before the Grand Chamber, the latter considers it useful with a view to its examination of the present case to confirm that the Paposhvili judgment (cited above) offered a comprehensive standard taking due account of all the considerations that are relevant for the purposes of Article 3 of the Convention. It maintained the Contracting States’ general right to control the entry, residence and expulsion of aliens, whilst recognizing the absolute nature of Article 3. The Grand Chamber thus reaffirms the standard and principles as established in Paposhvili.

134. Firstly, the Court reiterates that the evidence adduced must be “capable of demonstrating that there are substantial grounds” for believing that as a “seriously ill person”, the applicant “would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (ibid., § 183).

135. Secondly, it is only after this threshold test has been met, and thus Article 3 is applicable, that the returning State’s obligations listed in paragraphs 187-91 of the Paposhvili judgment (see paragraph 130 above) become of relevance.

136. Thirdly, the Court emphasizes the procedural nature of the Contracting States’ obligations under Article 3 of the Convention in cases involving the expulsion of seriously ill aliens.  It reiterates that it does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens.  By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3.  The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights (ibid., § 184).”     

39.The Grand Chamber then proceeded to clarify the relevance of the Paposhvili threshold test in the contest of the removal of seriously ill aliens irrespective of what particular type of medical issues:

“137. The Court has consistently applied the same principles in cases concerning the expulsion of seriously ill applicants, irrespective of what particular type of medical issue – somatic or mental – underlay their health condition.  In the Paposhvili judgment (cited above), before it proceeded to formulate the new standard, the Court had regard to case-law relating to applicants suffering from both physical and mental illnesses (see paragraph 127 above and the range of authorities cited in Paposhvili, cited above, § 179).  In the wording of paragraph 183 of the Paposhvili judgment, the standard refers to “a seriously ill person”, without specifying the type of illness.  Thus, it is not limited to any specific category of illness, let alone physical ones, but may extend to any category, including mental illness, provided that the situation of the ill person concerned is covered by the Paposhvili criteria taken as a whole.

138. In particular, in its relevant part, the threshold test established in paragraph 183 of the Paposhvili judgment (cited above), rather than mentioning any particular disease, broadly refers to the “irreversibility” of the “decline in [a person’s] state of health”, a wider concept that is capable of encompassing a multitude of factors, including the direct effects of an illness, as well as its more remote consequences.  Moreover, it would be wrong to dissociate the various fragments of the test from each other, given that, as noted in paragraph 134 above, a “decline in health” is linked to “intense suffering”.  It is on the basis of those elements taken together and viewed as a whole that the assessment of a particular case should be made.

139. In the light of the foregoing, the Court considers that the standard in question is sufficiently flexible to be applied in all situations involving the removal of a seriously ill person which would constitute treatment proscribed by Article 3 of the Convention, irrespective of the nature of the illness.”

40.In applying the relevant principles in the Paposhvili case, the Grand Chamber accepted schizophrenia as a serious mental illness but found that condition could not in itself be regarded as sufficient to bring the applicant’s complaint within the scope of Article 3 in that it had not been demonstrated that the applicant’s removal to Turkey had exposed him to a serious, rapid and irreversible decline in his state of health resulting in “intense suffering”, let alone to a “significant reduction in life expectancy”, as while according to some of the relevant medical statements before the Court that a relapse was likely to result in aggressive behaviour and a significant higher risk of offences against the person of others as a result of worsening of psychotic symptoms which could have been very serious and detrimental effects, they could not be described as “resulting in intense suffering” for the applicant himself, as it did not appear that any risk had ever existed of the applicant harming himself, while any risk to the applicant’s physical health owing to immune defects that might be caused by his medication, which appeared to have been neither real nor immediate in the applicant’s case, and that in any event the relevant evidence had not indicated that such immune deficiencies, should they occur, would be “irreversible” and would result in the “intense suffering” or “significant reduction in life expectancy” necessary to satisfy the Paposhvili test (see [142] – [145] of the Savran judgment).

41.The Grand Chamber was therefore not convinced that the applicant in that case had shown substantial grounds for believing that, in the absence of appropriate treatment in Turkey or the lack of access to such treatment, he would be exposed to a risk of bearing the consequences set out in the Paposhvili judgment, and concluded that the circumstances of his case had not reached the threshold set by Article 3 to bring the applicant’s complaint within its scope ([146] – [147] of the judgment).

The Applicant’s Challenge         

42.In the present case now before me, at the time of the Board’s determination of the Applicant’s claim and appeal, neither the UKSC’s AM judgment nor the judgment of the Grand Chamber in the Savran case were available, but as noted above that the Board did refer to and rely on the judgment of the Grand Chamber on the Paposhvili case (see [67] – [69] of Board’s Decision), but which the Applicant by his proposed grounds as listed above complains that the Board had essentially failed to properly apply the relevant principles in its determination of his medical conditions and needs for the appropriate treatments that he would require in Bangladesh in failing to obtain adequate and/or latest information of his medical condition, and also wrongly assessed the availability of medical treatment for HIV/AIDS in Bangladesh (see Grounds (1) – (3) and the Applicant’s submissions in paras 19 – 67 of Form 86).

Analysis     

43.It is clear from its decision that the Board did not take issue with the seriousness and gravity of the Applicant’s illness, and found it important to have an updated view of the Applicant’s health condition for its assessment of his future needs in Bangladesh upon his refoulement ([44] of decision), and did in fact on 30 September 2017, shortly before the appeal hearing, direct the Applicant to provide his up-to-date medical report from his Hong Kong doctor relating to his HIV status (see [6]), but the Applicant claimed to be financially incapable of obtaining a formal medical report, and instead just produced a memo dated 29 November 2017 from his doctor which stated as follows (Item 18 : 242 of Exhibit MR-1 of the Applicant’s supporting affirmation of 18 October 2019):

“This is to certify that the above named is currently followed up at our clinic for HIV management. He is currently receiving Combivir 1 tablet twice a day, darunavir 800mg once daily and ritonavir 100mg once daily. His HIV viral load has remained undetectable since Aug 2016. During his latest blood check on 11 August 2017, his CD4 count was 386 cells/ul with an undetectable HIV viral load.”

44.The Board did not proceed to obtain a formal medical report by itself or direct the Immigration Department to obtain one under Section 37ZC (1)(b) of the Immigration Ordinance, and instead relied on the memo of the Applicant’s doctor and those other information earlier submitted by the Applicant such as handwritten records of his treatments from the Centre for Health Protection covering the period from November 2008 to April 2016, and printed records produced by the Department of Health up to May 2016 ([28]), which can be found in the same Exhibit MR-1 of the Applicant’s said affirmation at Item 20 : 247 – 277, with most of them either scribbled in handwriting which are hardly illegible (p249-269), or just contained what appear to be records of the Applicant’s medication dosages (p271-277).

45.On the basis of such information relating to the Applicant’s HIV condition, of which the Applicant argues as wholly inadequate, the Board proceeded to determine that he will likely be able to continue with his HAART therapy in Bangladesh by relying mainly on the NAM website and those COI used by the Director in his decision of 2016, of which most were dated from 2008 to 2012 and which the Applicant argues as grossly outdated, and that in one of them namely the 2012 UNAIDS Report in which the Board found 84% of HIV positive adults in Bangladesh in 2012 were able to access or receive the same HAART drugs which the Applicant was then receiving in Hong Kong, but which the Board conceded that its research did not reveal the precise name of all the HAART drugs which are regularly dispensed in Bangladesh, and more significantly, as submitted by the Applicant, that the 2012 UNAIDS Report was in fact not the latest one available to the Board at the time of its assessment, when the relevant website already displayed the 2015, 2017 and 2018 UNAIDS Reports, while the figure of 84% of HIV positive adults in Bangladesh which the Board stated to be receiving the HAART drugs treatment in 2012 should have been properly read within the context of the entire paragraph as follows (Item 8 : 114 of Exhibit MR-1):

“Care and Support for People with HIV and Anti retroviral Therapy Coverage

Currently 681 HIV positive persons are receiving ART from 5 ART centres in Bangladesh – all of which are run by civil society organizations. Three ART centers are situated in the capital city, one is in the port city and one is in the city recorded to have high external migration. Most of the ART centers provide holistic services including VCT, nutrition support, treatment for TB co-infection, etc. Of the 681 persons 415 are male and 266 are female.

On the indicator – percentage of eligible adults and children currently receiving antiretroviral therapy, the current ART coverage has been maintained at 45%.  It was 47.7% in the previous report.  About 84.2 % of adults and children with HIV are known to be on treatment 12 months after initiation of antiretroviral therapy.  Of them 82.6% are male and 17.3 % are female.  This is a slight decrease from 90.1% in the 2010 UNGASS report.  Out of 424 persons initiating, 357 had continued for 12 months.  Of the 67 who had discontinued – 46 had died, 9 had stopped therapy and 12 were lost to follow-up or transferred.”  

46.In the premises, and for all these reasons, and given the procedural nature of the returning State’s obligations under Article 3 in cases involving the expulsion of seriously ill aliens as emphasized in the most recent cases of Paposhvili, AM and Savran (paras 28, 29 & 34 above), I am of the view that there are merits in the Applicant’s intended application for judicial review of the Board’s decision based on his proposed Grounds (1) – (3) as reasonably arguable, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition             

47.Accordingly, I extend time to the Applicant’s application, and grand leave  to the Applicant to apply for judicial review of the Board’s decision on the basis of Grounds (1) – (3), while for obvious reason it is not necessary at this stage to deal with his Grounds (4) or (5), and direct that he shall file and issue his originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 24^th day of September 2024

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