ANOWAR HOSSAIN POKIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 304/2018

[2020] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 304 OF 2018

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong illegally by boat on 20 June 2008 and was arrested by the police the next day.  The applicant submitted a non-refoulement claim by way of written representation on 29 June 2008.  His non-refoulement claim form was submitted on 8 September 2016.  There is nothing on file to explain this delay.

2.  The applicant attended a screening interview on 31 October 2016.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 2 November 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tonino Caravella (“the Adjudicator”), heard his appeal on 4 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 29 December 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The applicant is a Bangladeshi national.  He was born on 12 August 1976, in Borogacha.  He worked as a farmer and a salesman.  His family were supporters of the Bangladesh Awami League (“AL”).  In 2007, the applicant maintains that there was a clash between the Bangladesh Nationalist Party (“BNP”) and the AL.  The applicant was able to flee unhurt but nevertheless reported the incident to the local police as party members had been injured.  He was told by the police that they would not follow up a complaint against the BNP.  The applicant says he initially hid in the home of his maternal aunt and whilst doing so, eight BNP members came to his home, asked for his whereabouts and broke the furniture.  They also pushed his father to the ground.  On hearing this, the applicant moved further away and went to the home of his parents‑in‑law.  He believed that he was still being sought by the BNP and that threats to kill him had been made.  The applicant therefore moved even further away from home to a friend’s house.  At this stage, he was advised by his friend to leave Bangladesh altogether and so he went home to obtain the funds to do so.  He also visited the local AL office.  He says that 15 minutes after his arrival at the office, some 40 BNP members turned up with weapons and shouted and broke furniture but the applicant once more escaped unharmed, although others had been injured.  He did not seek to report this incident to the police and eventually he went to Dhaka to await being able to leave Bangladesh.  The applicant was married in Bangladesh but had lost contact with his wife and daughter in 2008, presumably when he came to Hong Kong illegally by boat from China.

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 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[1].

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.  He asked the applicant a number of questions about AL and its aims and policies.  The applicant could only answer in the most simplistic way and did not seem to have an understanding of the political ideology of the party.  His answers were quoted by way of example as “the party is good and it helps the poor people”.As to the first incident in 2007, the applicant was asked to describe it.  In response he said that there had been 15 members of AL at a meeting when 30‑40 BNP supporters had started a fight.  He said that he had in fact required hospitalisation as a result and had stitches to his forehead.  This was not his original testimony.  The Adjudicator pointed this out and put the applicant on notice that he had concerns about his credibility.  In the ensuing interview, the applicant embellished his position and attempted to raise his lowly status to a far greater one than he had originally suggested.  This exacerbated his lack of knowledge about AL.  In the event, he was disbelieved.  The Adjudicator explained in detail why this was the case and why he had failed to establish his claim.

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.  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.  The applicant was disbelieved, but even so, he was put on notice about this and given every opportunity to make good his claim.  I have not found any error of law or procedure on the part of 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 more than 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.

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.

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