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HCAL 797/2017
[2018] HKCFI 1783
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 797 of 2017
BETWEEN
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Madbar Sohel |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by The Honourable Mrs Justice Campbell-Moffat:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Procedural history
1. The Applicant entered Hong Kong illegally on 15 December 2013 and was arrested by the police on the same date. He was transferred to the Immigration Department on 16 December and released upon recognisance on 14 January 2014. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 December 2013. His NRF claim form was submitted on 26 January 2016.
2. The Applicant attended a screening interview on 6 April 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 19 May 2016 and by Notice of Further Decision (re BOR 2) on 3 March 2017. The Adjudicator of the Torture Claims Appeal Board (“the TCAB”), Mr Tam Kwok Wah, heard him on 3 April 2017. He considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 17 October 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The Applicant is a Bangladeshi national. He was born on 29 November 1987 in West Kuapur. He had eight years of formal education, is single, a Muslim and has worked as a machine operator. He is an active member of the Bangladesh Nationalist Party (“BNP”), which is in opposition to the Awami League (“AL”), who are currently in power. In 2011, whilst at a BNP rally, the Applicant and fellow BNP members were attacked by members of AL, who throwing bricks and stones. This attack caused injury to the Applicant’s legs which took 20 to 25 days to recover but did not require hospitalisation. The Applicant attended another public BNP meeting about five months later when members of AL attacked the group with cocktail bombs. Although the police were present, the Applicant maintains that they were siding with AL and therefore dispersed the BNP. Whilst attempting to flee, the Applicant was further assaulted but sought private medical assistance only. On this occasion the Applicant twice attempted to make a complaint to the police as he could identify one of his attackers, however, the police simply advised him to stay away from rallies of this type.
5. For a short period of time, the Applicant avoided political rallies and nothing of note occurred. In 2013 he began to become politically active once more and joined a rally in November. The Applicant was accosted on his way home by 8 to 10 AL members and was punched and kicked. He also received death threats from a local MP. As a result, the Applicant applied for and obtained a passport and left the country to go to China, from where he entered Hong Kong illegally.
The non-refoulement claim
6. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:
i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.
7. It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the Applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the Applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.
Decision and Further Decision of the Director
8. The Director analysed the Applicant’s claim on all applicable grounds. He considered a range of documentary evidence. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon. He failed to do so.
Decision of the Adjudicator
9. The Adjudicator analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. The applicant was unrepresented but had the benefit of a Bengali interpreter. The Adjudicator correctly set out the law and key legal principles including the burden and standard of proof. He found that the Applicant had not been specifically targeted by members of the AL; that the level of injury on any occasion was not sufficiently serious and that the reaction of the police to the unlicensed BNP rallies was in accordance with their duty and the law rather than indicative of being a partisan act.
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. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and 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
11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.
13. 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 24th day of August 2018.
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(Ms Queenie Mak)
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 24/8/2018
Madbar Sohel
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3784/16/5/202/B513
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000424/17 (formerly
RBCZ 1094/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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