RE MD HIMEL also known as MUNA SARKAR also known as SAHEN

HCAL 218/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 218 OF 2016

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J U D G M E N T

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1.  This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dismissing his claim for Non-refoulement and the decision of the Chairperson of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Chairperson”)[1] dismissing his Appeal / Petition.

BACKGROUND

2.  The Applicant is a Bangladesh national. 

3.  The Applicant had on two occasions come to Hong Kong under two different identities.  On each occasion, he broke the law and was deported after having served the sentence.  He then made frequent trips to Hong Kong under another identity.

4.  On 26 March 2006, he came again, this time under yet another identity with name of MUNA SARKAR, and was permitted to remain as a visitor until 2 April 2006.  He did not leave and overstayed until he was arrested on 8 December 2010.

5.  Eventually for the offences of Breach of Deportation Order and Breach of Condition of Stay, he was sentenced to imprisonment terms.

6.  Having served the sentences, on 27 September 2011, he lodged a non-refoulement claim.

7.  He withdrew his claim on 28 November 2012 and did not report for his Recognizance since 28 March 2013.

8.  Nothing had been heard of him until he was arrested on 13 May 2016.  Three days later, he requested to have his non-refoulement claim re-opened.

9.  His claim was considered by the Immigration Department under the following grounds :

(1) Risk of being tortured as defined in Part VIIC of the Immigration Ordinance[2] (torture risk);

(2) Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance[3](BOR2 risk);

(3) Risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment (“CIDTP”) contrary to Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (BOR3 risk); and

(4) Risk of persecution with reference to the non-refoulement principle under Artilce 33 of the 1951 Convention relating to the Status of Refugees (persecution risk).

By a Notice of Decision dated 16 August 2016[4], the Director rejected the claim. 

10.  The Applicant lodged an appeal / petition (“appeal”) against the decision of the Director.  There was an oral hearing.  By the Decision dated 3 November 2016, the Chairperson rejected the Applicant’s appeal.

11.  On 28 November 2016, the Applicant filed an application for leave to apply for judicial review against the decisions of the Director and the Chairperson.

RELIEF SOUGHT

12.  The Applicant sought the following relief :

(1) an Order of Certiorari to bring up and quash the said decision of the Director;

(2) an Order of Certiorari to bring up and quash the said decision of the Chairperson;

(3) an oral hearing if leave is not granted on paper (and thus this hearing);

(4) such further and other relief the court may provide; and

(5) an Order for costs.

GROUNDS OF REVIEW

13.  The Applicant appeared in person.  The grounds of review may be summarised as follows :

(1) Against the Director :

(a) Failure to consider or give sufficient weight to relevant COI which supports the Applicant’s case;

(b) Failure to give adequate reasons as to his consideration of the COI; and

(c) The decision is wrong in law in the light of the abundance of evidence and COIs pointing to the contrary of the decision.

(2) Against the Chairperson :

(a) Failure to make sufficient enquiry;

(b) Failure to advise the Applicant to obtain medical reports from Bangladesh authorities when deciding the seriousness of the injuries suffered by the Applicant;

(c) The decision was unreasonable in the Wednesbury sense; and

(d) Failure to comply with the high standards of fairness.

FACTUAL BASIS FOR THE NON-REFOULEMENT CLAIM

14.  The Applicant claimed to be in the import business which he started when he was still attending High School.

15.  He had business partners, some of them were affiliated with the Awami League (AL) whilst he was affiliated with the J-e-I and had been active in the activities of the latter, occupying important post.  He did not tell his business partners his political affiliation.  When it was discovered, they threatened to kill him.

16.  There were two violent incidents around 1998 involving J-e-I and AL supporters in which he was attacked and injured.  On each occasion, he could only obtain medical attention at a private clinic.  He did report to the Police but the Police refused to take action against the AL.

17.  In 1998, he was arrested for importing goods from India without paying customs duties.  Since then, his business went downhill.  After he had been granted bail, he went to India to look for further business opportunities and avoid his business partners who had been dunning for repayment of the investment fund.  These business partners were all from AL. He thought that they would kill him without hesitation if they saw him as he had absconded with their money.  These people had looked for him and armed gangs had harassed his family.

18.  He also alleged that his life would be in danger if he is refouled as the AL government had been sentencing J-e-I leaders to death.  Besides, as he had absconded from his bail, he would be arrested if he returns.

HEARING OF THE APPLICATION

19.  For the purpose of this application, the Applicant relied on his Notice of Application for Leave to Apply for Judicial Review[5] and an affirmation which he filed. 

20.  At the hearing, the Applicant reiterated that from the information he had received it would still be unsafe for him to return to his country.  Despite he has been unable to contact his family for months, he was told by a brother of a close friend about 3 months ago that people of J-e-I had been picked from home and no one had heard from them again.  He was also told that people from AL had set fire on his house.  His uncle also told him around 1 ½ month ago that people from AL had been harassing him to force him to tell them where he (the applicant) was and his cousin had also been badly beaten up for the same reason.  

21.  The Applicant said he had been in Hong Kong since 2005 and he wished to return to his country as he missed his family in particular his aged mother but it will be unsafe for him to do so.

22.  He also said he has proof of his political affiliation but is unable to obtain the evidence since he has lost contact with his family.

DISCUSSION AND CONSIDERATION

23.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

24.  Against the Director, it was submitted that he failed to give sufficient weight to the information which supported his allegations.  The Applicant criticised that the Director had failed to observe up-to-date COIs with both broad and general relevance and / or information related to people in similar profile as him.  He also criticised the Director for failing to give sufficient weight to information that there has been serious corruption and only powerful people would receive assistance from the police.  Even though there is information of reforms in the police, the conclusion in those COIs of improvement is mere speculation.  In addition, it was submitted that the Director failed to give adequate reasons for his decision.

25.  I have perused the Decision of the Director.  In the light of the extent and depth of the relevant analysis and assessment, I do not consider there is a realistic prospect of success in pursuing any of the points raised against the Director.  The COIs quoted by the Director were materials which he was entitled to take into account.  The decision can hardly be said to be unreasonable.  The reasons given in support of the decision is sufficient in the circumstances of the case.

26.  Against the Chairperson, it was submitted that she did not make sufficient enquiry.  It was further submitted that as medical report is relevant to the consideration of whether the actions alleged were severe enough to be qualified as “torture”, the Chairperson should have advised the Applicant to obtain medical reports and she failed to do so.  It was submitted that the decision was unreasonable and also that the wrong test was applied in the consideration of whether the Applicant’s fundamental human rights are at risk in that the extradicted. adopted the test of whether the State “would be able to” provide protection rather than the test whether reasonable protection has “in fact” been provided.

27.  Having perused the Decision of the Chairperson, I am again of the view that there is no realistic prospect of success in pursuing any of the points raised against her.  

28.  I do not consider the Chairperson had made insufficient inquiry or failed to meet the necessary standard of fairness. There was detailed analysis and consideration of the relevant issues with careful assessment of the factual assertions made by the Applicant.  The findings on facts are reasonable and consistent with evidence.  As regards consideration of COIs, the Chairperson said the Board had “stringently scrutinized and checked for relevance and COIs had been presented to the Appellant for his comments and had ensured the Appellant had been given a chance to respond, refute the COI evidence and give his comments.”

29.  There was clear finding that there was no state acquiescence in any form. I do not consider the assessment of the Chairperson in this aspect was flaw. 

30.  As regards the point about obtaining of medical report, whilst such report may be of significance in certain case, it is not in the circumstances of the present case as the Chairperson, indeed the Director as well, considered the case based fully on the extent and degree of injuries described by the Applicant without questioning the truthfulness of his description.  The alleged attacks took place years ago and there is no indication of any possibility of serious injuries unknown to the Applicant which may otherwise be revealed in a report on his medical examination back in the time of alleged attack. 

31.  All in all, I do not consider it can be reasonably arguable that there were material wrongful consideration of the evidence and that the decision was unreasonable in the Wednesbury[7] sense.

32.  Judicial review is not a further or alternative appeal procedure.  As said by Lam J, as he then was, in TK v Director of Immigration[8], in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury test.

33.  I have considered the Decisions of both the Director and the Chairperson.  I am not persuaded that any allegation by the Applicant is substantiated in the sense that there is realistic prospect of success.

34.  I do not consider anything the Applicant said at the hearing enhance his case materially.

CONCLUSION

35.  The Applicant has not satisfied me that there is any matter based on which there is realistic prospect of success to apply for judicial review against the decisions of the Director and the Chairperson. Leave to apply for judicial review, against either the Director or the Chairperson, is not granted.