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

HCAL 207/2018

[2020] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 207 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 illegally and was arrested by the police on 8 June 2014 and transferred to the Immigration Department the next day.  The applicant submitted a non-refoulement claim by way of written representation on 10 June 2014.  He was released upon recognisance on 2 July 2014.  His non-refoulement claim form was submitted on 8 June 2016.

2.  The applicant attended a screening interview on 21 June 2016.  The Director of Immigration (“the Director”) dismissed his claim (not in respect of BOR 2) by Notice of Decision (“the Decision”) on 4 August 2016 and by Notice of Further Decision (re BOR 2) on 24 November 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tam Kwok‑wah, Jerry (“the Adjudicator”), heard his appeal on 18 January 2018.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 6 February 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 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 2 May 1987.  He is a Bengali Muslim and single.  Between 2008 and 2014, he ran the family store.  In 2008, the applicant joined the Bangladesh Nationalist Party (“BNP”) and was an active supporter.  Nothing occurred in respect of his support for BNP until October 2013, when he was stopped by a group of men who wanted him to join the Awami League (“AL”).  They threatened to kill him if he did not do so.  The applicant said he would think about it and left the scene unharmed.  A similar incident occurred with the same men in December 2013 and once again, the applicant managed to leave unharmed.  During these same months there were many clashes between the state and opposition parties in which the applicant was involved but on each occasion he came away with minor injuries only.  On the day of the General Election in 2014, the applicant was part of a group of BNP supporters who were attacked by AL members with weapons.  According to the applicant, his own party also carried weapons and were able to defend themselves.  He was injured in this altercation but not seriously.  He says that the BNP group got the better of the AL group on this occasion as they outnumbered them.  In revenge members of AL came to the applicants store a few days later.  They assaulted him and vandalised the store as well as threatening once again to kill him.  Neighbours intervened and the applicant escaped but this time he maintains that he was seriously injured as he had bruising, swelling and cuts all over his body.  He fled to a friend’s home, which was some three hours away and received medical attention there, recovering in three to four days.  Whilst away, the applicant came to learn that a complaint of murder had been made against him to the police by members of AL and that he was wanted by the police.  Despite being some three hours away from his home town, the applicant says he was followed by the same group of AL members but escaped.  The whole time he was away, the applicant’s family told him they were being harassed by people wanting to find him and they could not report the matter to the police as he was a wanted man.  The applicant therefore decided to flee the country and went to China before entering Hong Kong illegally in June 2014.

The non-refoulement claim

5.  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 (“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 has not said whom he seeks to review.  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.

Decision of the Adjudicator

8.  The applicant had the benefit of a Bengali interpreter before the Adjudicator.  He confirmed the papers before the Adjudicator and had nothing to add.  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 explained the procedure to the applicant and enquired appropriately as to the background facts and basis of claim.  He correctly set out the law and key legal principles including the burden and standard of proof.  He applied those principles to the alleged facts in detail and explained his reasoning.  He identified the incident in which the applicant had been harmed but noted that this had been as a result of clashes between factions on election day and not because the applicant had been personally targeted.  The January 2014 incident is unsupported by any other evidence but even so, it did reach the level of harm required to be proved so as to show future risk.  As there had been no report to the police, the Adjudicator took the view that there was no evidence to suggest that he would not have been afforded proper state protection.  Indeed, there appears to have been no state involvement in his claim.  The Adjudicator came to the view that the applicant was not a credible witness and he found that the applicant had not satisfied the burden upon him to establish his claim under any head.

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.  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, 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 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 eminently 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