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HCAL 1699/2021
[2022] HKCFI 1972
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1699 of 2021
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Chitemere Ryan Farai |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 20 July 2021, which is the Decision of the Director of Immigration (“the Director’s Decision”). It has been dealt with by the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 1 November 2021 (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review and is dismissed accordingly.[1]
2. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a date was fixed for his hearing. However, the applicant was absent without prior notice to the Court. The application will be dealt with on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Zimbabwe. He entered Hong Kong on 27 May 2019 as a visitor and was permitted to say until 17 June 2019. He did not depart and had overstayed since 18 June 2019. On 15 May 2020, he indicated his intention to lodge a non-refoulement claim but failed to take any further actions. On 10 May 2021, he was arrested by the Hong Kong police. On 27 May 2021, by way of a written submission, he lodged his non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the secret agents of the government as he joined campaigns for homosexual relationships and also joined protests against the government.
5. According to the applicant, whilst he was not homosexual, he had been supporting the homosexual rights since 2016. As a supporter, he often joined the protests, standing in the frontline and carrying the banners. In addition, he joined the online campaigns using his real identities. It was the applicant’s belief that the secret agents would pose threats to his life as the government was against the anti-government campaigns which include protests for same-sex marriage. The applicant claimed to have received many messages of death threats for his outspoken manner against the government. In 2018, he went to China to attend a six-month diploma course in English and Mathematics in Jiangsu University. He was informed by his friend that his peers were beaten by the secret agents. As a result, he stayed in China but was still actively involved in the online campaigns. Between November 2018 and 2020, he received 17 messages of threats demanding him to shut down his social media accounts. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 July 2021 by the Director (the “Director’s Decision”).
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) there was no concrete evidence to support the existence of the secret agents [11]; (ii) alternatively, there was no evidence that the secret agents had targeted him personally [12]; (iii) the applicant did not know the true identifies of the senders of those threatening messages and the said messages were simply gestures to prevent him from involving in the campaigns, rather than to show intention of harming or even killing him [13]; (iv) the applicant’s conducts were inconsistent with someone who genuinely feared the risk of harm [14]; (v) his claim was largely based on hearsay information [15]; (vi) state protection would be available to him [16]-[20]; and (vii) internal relocation was not a undue hardship for the applicant [21].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 18 October 2021, the Board conducted an oral hearing for his appeal. The applicant was conversant in English and thus did not require the assistance of an interpreter [6].
9. The Board reminded itself of the relevant legal principles in assessing the applicant’s claim. It first noted that the applicant did not lodge the non-refoulement claim promptly, which was detrimental to his credibility [24]. It also accepted that, if the applicant could successfully establish a personal risk of harm from the secret agents, he might not access to state protection [31].
10. Having considered the evidence, the Board found that the applicant’s claim relied entirely on speculation and conjecture. The Board noticed that the applicant’s fear of harm stemmed from information provided by his friend [41]. He had no direct contacts with the secret agents as he only received threatening messages from whom he could not identify [42]. The Board also observed that there was no reliable evidence to show (i) the applicant would be targeted by the Zimbabwe government; (ii) he would face any problem in Zimbabwe; (iii) he had suffered any harms; (iv) the government was unwilling to offer help [43]. Further, upon reviewing the country of origin information, the Board was satisfied that state protection was available to the applicant [58]-[68].
11. For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 15 December 2021 for leave to apply for judicial review of the Board’s Decision.
13. In his affidavit in support of his application, the applicant said he is not satisfied with the Board’s Decision and it is dangerous for him to return to his country.
DISCUSSION
14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
17. Those grounds in paragraph 13 above are not valid reasons to challenge the Board’s Decision.
18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
20. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 29th day of June 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 29 June 2022
Chitemere Ryan Farai
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29 June 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18404/21/7/204/ZWE14
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 922/21 (Formerly RBCZ 10809/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
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