MD ZAHIDUR RAHMAN MANIK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL691/2017

[2018] HKCFI 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 691 of 2017

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 on illegally by boat on 8 January 2007, from Bangladesh via China and remained undetected until 30 December 2007.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 28 August 2008.  His NRF claim form was submitted on 3 June 2014.

2.  The Applicant attended a total of four screening interviews on 1 April, 3 June, 10 July and 21 September 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 17 February 2016, and by Notice of Further Decision (re BOR 2) on 3 February 2017.  He appealed the original Decision to the Torture Claims Appeal Board (“the TCAB”) on 2 March 2016.  The Adjudicator of the TCAB, Mr William Lam, heard him on 7 April 2017.  He considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 6 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 September 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a Bangladeshi national.  At a young age he was the student president of a sports club called Mukti Shena Krira Songho (“MSKS”).  During his studies in Haji Misir Ali College (“the College”), he came to know a fellow student named Sujon.  Sujon was a supporter of the Awami League (“AL”), and, according to the Applicant, a member of the terrorist organisation called “Toffajjel Group”.  The Applicant and Sujon fell out over College activities and the animosity continued thereafter.  In January 2001, Sujon and some others interrupted a function organised by the MSKS and attacked the Applicant, although he received no injury and the incident was not reported.  Later that year, the Applicant was arrested and detained on a possession of drugs allegation, which he suspected was caused by Sujon.  Although detained for 2.5 hours, he was not questioned nor ill-treated by the police. Sujon was later expelled from the AL and joined the Bangladesh National Party (“BNP”).

5.  According to the Applicant, thereafter and whilst the Applicant was away from home, Sujon vandalised the Applicant’s house, assaulted the Applicant’s father, threatened to kill the Applicant and forcibly occupied the Applicant’s business.  This was not reported to the police.  For a period of approximately six months, the Applicant remained away from his home and business but returned in early 2003 to ask for his business back which was refused.  In mid‑2004, the Applicant alleges that he was kidnapped at gun point by Sujon and others during which he was assaulted with the butt of the gun and chopped on his left knee and ankle.  As a result he received three sutures to his head and bandaging for his other injuries.  This assault was reported but the police did not accept it.  Thereafter, he hid in several places until 2005. At the end of 2005, the Applicant alleged that four or five people from AL assaulted him, but no serious injury was sustained.  In May 2006, the Applicant went to Kolkata in India for six months and returned to Bangladesh on 7 January 2007.  He departed Bangladesh soon after for Mainland China and arrived in Hong Kong illegally by boat on 8 January 2007.  Since arrival, the Applicant maintains there is a warrant for his arrest for murder in Bangladesh.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was 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 Director

8.  The Director analysed the Applicant’s claim on all applicable grounds on four separate occasions as outlined above.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Bangladesh at present.  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, which he did.  In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

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 had the assistance of an interpreter.  He correctly set out the law and key legal principles including the burden and standard of proof.  He also carefully considered a substantial amount of COI documentation, which was included in the appeal bundle and which ran to some 778 pages.  He addressed each head of claim and provided lengthy reasons for the Applicant’s failure thereunder.  Additionally he commented upon the credibility of the Applicant.

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.  I have considered the papers, grounds and submissions carefully.  I have not taken into account the comments made by the Adjudicator as to his view of the Applicant’s credibility in order to ensure that my approach to the papers is completely unbiased.  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 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 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.

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