NOOR MOHAMMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 229/2018

[2020] HKCFI 1228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 229 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 legally on 23 July 2005, but thereafter overstayed.  He was arrested by the police 14 months later, on 28 September 2006, and transferred to the Immigration Department the next day.  On 30 August 2006, he made a claim for asylum under the UNHCR.  On 24 October 2006, he was made the subject of a Removal Order. He was released upon recognisance on 20 December 2006.  On 19 July 2007, the applicant was arrested for taking up employment without the permission of the Director of Immigration (“the Director”).  He submitted a non‑refoulement (“NRF”) claim by way of written representation on 9 August 2007 and was released once more upon recognisance on 13 August 2007.  His NRF claim form under the Unified Screening Mechanism (“USM”) was submitted on 5 August 2013 and his supplementary claim form (“SCF”) on 20 August 2014.

2.  The applicant attended a screening interview on 29 October 2013, in respect of his NRF and on 10 December 2014, in respect of his SCF.  The Director dismissed his claim (not including BOR 2) by Notice of Decision (“the Decision”) on 26 February 2015 and by Notice of Further Decision (in respect of BOR 2) on 2 August 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 5 December 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 8 February 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 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 20 April 1982, in Dhaka.  He is single and supplied building materials. Between 2000 and 2002, he was a self‑employed building contractor.  He is a supporter of the Bangladesh Jatiya Party (“BJP”) but not a member.  In 2001, when he was just 19, the applicant was approached to join the Awami League (“AL”).  He refused and was threatened that his business would be shut down if he did not join.  He was arrested some 15 to 20 days later, accused of having two bullets in his possession and he was therefore charged with possession of illegal weapons.  Whilst in custody, the applicant says that a policeman told him that the real reason for his arrest was his refusal to join AL.  The applicant was detained for three days without incident and then sent to Dhaka Central Jail where he was remanded for a month before being granted bail.  Nothing more occurred until January 2002, when he was asked to join the Bangladesh National Party (“BNP”), which was, at that time, the ruling party.  The applicant refused and his business was threatened.  Shortly thereafter, the applicant’s construction site was visited by four to five members of the PH gang (“the Gang”).  The applicant was not present, but the Gang beat up his employees, stopped them working and threatened to kill them. They were to pass on a message to the applicant that he was to join the BNP and pay extortion money.  As a result of this incident the site was shut down and his business was closed.  On the same evening he received a telephone call in which similar threats were made to him personally.  On the same day, the applicant left the area and went to stay with relatives for a month.  In the interim, the Gang harassed his family.  In February, the applicant returned home but as he was approaching his house he was attacked by three members of the Gang with weapons.  The applicant says he was severely beaten and shot in the thigh but managed to escape.  He went to a private hospital to be treated.  He was hospitalised for one month, during which time the Gang continued to harass his family.  This incident, like the others, was not reported to the police as the BNP were the ruling party and the applicant did not believe the police would assist.  After discharge from hospital, the applicant went to stay with his maternal aunt for eight to nine months.  He believed that the Gang was looking for him in his home town and also in his aunt’s town as he saw them one day. As a result of that sighting, he moved once more, this time to Munshirhut, to another relative’s home and reported to his lawyer from time to time in respect of the outstanding offence of possession of illegal weapons.  He remained in Munshirhut for a year without incident, although he says that he did see an extremist there without being seen himself.  Once again, he left and moved to another relative’s address some distance from Munshirhut.  During a visit to his lawyer in Dhaka, the applicant was approached by the Gang but he says he managed to run away, although he heard three shots.  Because of all of this, the applicant’s family arranged for him to leave the country.

The non-refoulement claim

5.  Under the USM, the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and Further Decision of the Director

7.  The applicant seeks to review the Decision and Further Decision of the Director only.  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.  Nevertheless, I have considered the papers before me with reference to the Decision of the Adjudicator.

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 summarised the facts relied upon and made reference to new evidence in respect of an incident in 2014.  The Adjudicator disbelieved the applicant in respect of the shooting incident which led to a month’s hospitalisation and he explained why that was the case.  This lack of credibility was not assisted by the fact that the applicant had waited over a year to make a claim and then only after arrest.  Despite the finding of the Adjudicator as to the applicant’s lack of credibility, the Adjudicator went on to correctly analyse the applicant’s case according to the law and key legal principles including the burden and standard of proof under the heads of Torture and BOR 2 and 3.  In respect of persecution risk, the Adjudicator did not appear to set out the correct legal test when he found that the applicant had not suffered “severe injury or serious harm”[1], which he said would need to be proved to place him under this head of claim.  An applicant does not have to suffer severe injury or serious harm of the type suggested by the Adjudicator, in order to bring himself under this head of claim[2].  However, the facts of the applicant’s case do not establish the basis for a claim under this head and the Adjudicator’s error in this regard does not make any difference to the success of his claim here or in the tribunal below.  The Adjudicator, in any event, went on to find that even if his claim had been made out, he could re‑locate and explained his reasoning in this regard.

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 as against the Adjudicator.  The applicant seeks a re‑hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the applicant did not submit any grounds of review as against the Adjudicator.  I have considered the papers carefully.  I have not found any error of law or procedure which is relevant to the claim and the facts before him.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite disbelieving the applicant, the Adjudicator went on to assess his claim at its highest.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and 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