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

HCAL 702/2017

[2018] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 702 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 originally entered Hong Kong legally on 15 April 2006, but over-stayed and was subsequently arrested by the police on 26 January 2007.  He submitted a torture claim by way of written representation on 31 January 2007, but was not interviewed until 9 February 2011.  The Director of Immigration (“the Director”) dismissed his claim on 8 March 2011, which he appealed.  On 7 April 2011, the Applicant was notified that his appeal was unsuccessful and he was removed from Hong Kong shortly thereafter on 20 May 2011.

2.  On 12 December 2015, the Applicant returned to Hong Kong illegally.  He was arrested on 20 December and referred to Immigration.  He submitted an NRF claim form by way of written representation on 26 December and was released on recognisance on 13 January 2016.  His NRF supplementary claim form was submitted on 26 April 2016.  His claim was considered under the Unified Screening Mechanism under every head save that for which he had already been considered in 2011 i.e. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

3.  The Applicant attended a screening interview on 21 June 2016, when he was represented by a duty lawyer.  The Director dismissed his claim (under BOR 3 and persecution risk but not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 June 2016 and by Notice of Further Decision (re BOR 2) on 14 September 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The Adjudicator of the TCAB, Mr S J Geiser, heard him on 29 May 2017, which pre-dated the Further Decision in respect of BOR 2.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 before refusing his appeal on 28 September 2017.

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

Background

5.  The Applicant is a Bangladeshi national.  He was born on 2 January 1976, in Kulubari, which is in the Comilla District of Bangladesh.  He is 41 years of age and married.  Between 1987 and 2001, the Applicant worked as a tailor.  At that time, he was a supporter of the Jatiya Party but was not politically active.  On 9 August 2001, when the Applicant would have been 25 years old, he witnessed the aftermath of a murder by shooting, at which three people were present, all of whom he recognised.  One of the men, “Rahman”, came from his own village and was a member of the Awami League (“AL”).  That man’s brother, “Kamal”, was a prominent local citizen and was also connected to AL.  The Applicant maintains that the three men shot at him as he was running away because he had seen them at the scene of the murder.  He was able to flee without injury but did not report the incident to the police.  Instead, he fled to his aunt’s home and remained there for one year without further incident.  He then moved on to the home of another relative, where he stayed between 2002 and 2006.  The Applicant believed that the men in question were trying to locate him but he remained safe between 2001 and 2006 and was not harassed.

6.  In 2006, the Applicant came to Hong Kong and overstayed.  He was removed back to Bangladesh in 2011.  He joined the BNP. His political affiliation to the BNP is not the cause of his difficulties with Rahman and Kamal.  Their affiliation to AL is only relevant in so far as the Applicant felt that complaints made against them would not be investigated by the police as AL were the party in power.  Later in 2011, the Applicant saw one of the men who had been at the scene of the murder.  That same evening, his home was attacked by Rahman, Kamal and nine to ten others, whom he thought set fire to his house although he did not see the fire being set and the fire was extinguished by neighbours.  This incident was also not reported to the police.  Nothing else happened of note until early 2014 when the Applicant alleges he was attacked by Rahman and two other males using a knife, belt and rod.  This attack resulted in injuries which needed three sutures in a local hospital.  This too was not reported to the police.  The Applicant provided what purported to be medical evidence of the injuries sustained which indicate that the patient in question was 25 years old.  The Applicant would have been 38 years old at the time.  From February 2014 to March 2015, the Applicant lived in Chittagong.  During this period, he was accused of throwing a bomb at a vehicle causing the deaths of two people and injuring 10 to 12 others.  The Applicant believes a false report was made against him by Kamal.  Fear of being arrested for the bombing and of being the subject of further assault, drove the Applicant to return to Hong Kong.  Despite being wanted for the bombing, the Applicant was able to apply for and obtain a passport in his own name and leave Bangladesh for China without apprehension by the authorities.

The non-refoulement claim

7.  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.

8.  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

9.  The Director analysed the Applicant’s claim on all applicable grounds as outlined above.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to his injuries which post-dated his original application and interview in 2011. 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, if he wished to do so.  Incidents occurring after the Applicant’s return to Bangladesh in 2011, were relied upon to support his claim that his life was in danger.  Despite the available evidence that Kamal had been proceeded against and sentenced to life imprisonment, the Applicant maintained in response to this evidence that Kamal had been released as he was an AL member and that Rahman was still at large. He also accepted that he was not an active member of the BNP as he attended meetings on a monthly basis only and that his political affiliation was not the cause for the difficulties which he faced.  The fact that the Applicant was a witness to the immediate aftermath of a murder is not a private dispute as suggested by the Director, however, Kamal had been proceeded against and only Rahman remained at large, which would suggest that if the Applicant was at any risk, it would be from Rahman and not Kamal.  The incidents of harm relied upon by the Applicant post-date his original visit to Hong Kong and indicate that there may have been residual ill feeling between the parties as the Applicant’s home was damaged by fire and he was the subject of an assault.  Nevertheless, given the degree of harm suggested by the Applicant and the timescale over which that harm took place in relation to the original incident, the Director took the view that the risk of harm to the Applicant if he returned to Bangladesh was low.  That was open to him to do and was not Wednesbury unreasonable.  That is because the Applicant accepted that his family members had not been the subject of arrest, detention or imprisonment in Bangladesh nor did he or them have any problems arising out of their race, religion or ethnicity.  They were not the subject of any oppression by state or quasi state authorities.  This was not a politically motivated issue.  In coming to his decision to reject the Applicant’s claim under the various heads, the Director took this evidence into account, acted reasonably and explained his decision on the merits in a clear and intelligible manner including his finding that any issue which did exist, could be adequately dealt with by relocation as it had done previously.  In so far as the Further Decision is concerned, the Applicant was sent a letter on 7 March 2017, in which he was notified of his right to make a claim under BOR 2 and to make further submissions in writing in respect of such claim.  He declined to do so despite having asserted in his original interview that he was at risk of the death penalty if he were to be returned to Bangladesh and proceeded with for the bombing incident.  Without further credible and admissible evidence, that claim was properly considered and rejected.

Decision of the Adjudicator

10.  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.  He gave the Applicant the opportunity to adduce further evidence, call witnesses and make submissions, which he chose not to do.  He took into account the credibility of the Applicant and the relevant COI.  He accepted the underlying premise that the Applicant may have witnessed a murder in 2001, but rejected the claim that those responsible were still in a position to pursue him after a period of 16 years especially as the Applicant had not reported the incident to the police at any stage nor given evidence against them.  The fact that the Applicant is a fugitive from justice did not advance his case under any head of claim.  Nevertheless, the Adjudicator, as did the Director, took the Applicant’s case at its highest and found against him.

Leave to apply for judicial review

11.  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

12.  There were no grounds of review.  In his Affirmation dated 3 October 2017, the Applicant maintains that he is not happy with the Decision.  He has re-submitted the medical documentation upon which he has previously relied and 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

13.  Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions 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 Adjudicator engaged in a joint endeavour, on more than one occasion, 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 in all the circumstances of the case.

14.  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