NURUZZAMAN MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 782/2017

[2018] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 782 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong illegally on 2 July 2014, from China and was arrested by the police on the same day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 6 July, and was released upon recognisance on 17 August 2014.  His NRF claim form was submitted on 7 March 2016.

2.  The Applicant attended a screening interview on 20 May 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 August 2016 and by Notice of Further Decision (“Further Decision”) on 12 June 2017.  He appealed the Decision and Further Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Evan Ruth, heard him on 27 June 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 12 October 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 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 8 June 1981 in Rangpur, where he lived until 2000.  He is a Muslim.  Thereafter, between 2000 and 2014, the Applicant lived in several different places and worked as a maintenance technician between 2004 and 2014 and ultimately settled in Pabna to work.

5.  As a younger man, the Applicant had joined the student wing of Jamaat-e-Islami (“JEI”) and was an active supporter, mostly in his home area of Rangpur.  The Applicant experienced no difficulties until 2013.  By then, the Applicant’s party was being victimised by the ruling party, the Awami League (“AL”) and the Applicant took part in protests against the government although he held no official position within the party.  At one such protest, in June 2013, members of the opposition party attacked the JEI protesters using weapons but the Applicant fled unharmed and escaped.  On his way home however, he was threatened and attacked by a small group of AL followers and punched a few times.  He was informed by his uncle that, on the same evening, his uncle had received telephone threats against the Applicant’s life.  He did not require hospitalisation as a result of this attack and did not report the matter to the police.  Shortly afterwards, the Applicant maintains that the home of his maternal uncle was damaged by a group seeking the whereabouts of the Applicant, who no longer lived in his home area but worked some four to five hours ride away in Pabna.  Since that date, the Applicant has visited his uncle but has not returned home permanently and was able to obtain a passport and travel to China without any difficulty.

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 on two separate occasions as outlined above.  He considered a wide range of documentary evidence including additional documentation, about which the Applicant had notice.  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 including highlighting inconsistencies between the Applicant’s written and oral case.  He took the view that the Applicant was of little interest to the government of Bangladesh and had managed to live for a year unharmed after the June/July 2013 events upon which he relied.

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.  He correctly set out the law and key legal principles including the burden and standard of proof.  He found the Applicant had discharged the burden upon him of establishing the factual background upon which he relied. He found there was no real risk of persecution; right to life or prospect of torture, or cruel, inhuman or degrading treatment, punishment or torture.  He noted that the three incidents upon which the Applicant relied, took place some 450 km away from his place of work and residence and no attempt to approach him in that area had occurred.  Given the low level of his previous political involvement and the lapse of time, there would be no risk to the Applicant if he was to be returned to Pabna or some other part of Bangladesh away from Rangpur.

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, 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