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HCAL1125/2017
[2018] HKCFI 2049
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1125 of 2017
BETWEEN
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Touray Ousainou |
Applicant |
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and |
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Director of Immigration |
1st Putative Respondent |
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Chan ling-ling Tracy, Esq. |
2nd Putative Respondent |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Gambia. He is now aged 36 (DOB: 27 December 1981).
2. The Applicant claimed he would be harmed or killed by the Alliance for Patriotic Reorientation and Construction Party (“ARPC”) [the ruling party in Gambia] and Gambia’s security forces including the National Intelligence Agency (“NIA”).
3. The Applicant said he joined the United Democratic Party (“UDP”) in around 2003. His parents also supported UDP. The Applicant alleged his father was taken away by NIA on the number of occasions. His father disappeared for a few days but returned home eventually on each occasion. The father, however, did not tell the Applicant what happened when he was taken away by NIA.
4. The Applicant said APRC had been in power since July 1994 when his leader Jemmeh seized power in a military coup. The Applicant said he and his fellow UDP members had been frequently harassed by APRC people since 2005. The APRC people threatened to kill them if they continued to recruit teenagers to join UDP.
5. There were constant conflicts between APRC and UDP. In November 2011, the situation escalated as presidential election was approaching. The Applicant claimed that UDP members were arrested and tortured. Many were killed or disappeared. On two occasions, the Applicant was taken away by his enemies. He was tortured during detention.
6. The Applicant alleged he would be killed by APRC and NIA. His party’s leader made arrangement for him to leave Gambia for Indonesia in August 2012. The Applicant stayed in Indonesia for four months. On 7 December 2012, he arrived in Hong Kong from Indonesia as visitor. He was allowed to stay for 90 days. However, he overstayed. He made an application to UNHCR and surrendered to the Immigration Department on 28 March 2013. The Applicant raised a non-refoulement claim on 26 March 2014.
7. The Applicant claimed NIA and other Gambia government agencies were involved in his persecution. He could not get state protection in his country. He also said Gambia was small so his enemies could locate him easily; internal relocation was not feasible.
8. In the ensuing two-tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
9. On 21 December 2017, the Applicant applied for leave for judicial review.
Timeline
10. Things happened in this order: –
| Aug 2012 |
The Applicant left Gambia for Indonesia. |
| 2012-12-7 |
The Applicant came from Indonesia as visitor. The Applicant was allowed to stay until 7 March 2013. However, he overstayed. |
| Feb 2013 |
The Applicant made an application to UNHCR. |
| 2013-3-28 |
The Applicant surrendered to the Immigration Department. |
| 2014-3-26 |
The Applicant lodged a non-refoulement claim. |
| 2017-8-3 |
The Director interviewed the Applicant. |
| 2017-9-21 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) CIDTP risk (BOR3 risk) and (iv) life risk (BOR2 risk). [“the Director's decision”] |
| 2017-11-13 |
The Applicant with his lawyer appeared before the Board for appeal. |
| 2017-12-15 |
The Board refused Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondents
11. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
12. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
13. In Re: Moshsin Ali, the Court of Appeal ruled “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.”[5]The Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with his application for leave for judicial review in relation to the Board's decision only.
The Board’s decision
14. On 21 September 2017, the Director decided the Applicant failed to establish any torture risk, persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
15. The Applicant appealed to the Board.
16. On 13 November 2017, the Applicant appeared with his lawyer before the Adjudicator (Chan ling-ling Tracy, Esq.).
17. The Adjudicator had studied all the information before her and listened to the Applicant and his lawyer. She found the Applicant was like telling a story but the necessary details were missing. She did not find the Applicant credible. [6]
18. The Adjudicator studied the country-of-origin information (“COI”) relied on by the Applicant. She was not satisfied the information supported the Applicant’s description of risks in Gambia.
19. On the other hand, the Adjudicator studied relevant COI and found reasonable state protection[7] and internal relocation[8] were available to the Applicant.
20. On 15 December 2017, the Adjudicator refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.[9]
Grounds of judicial review
21. In Enclosure 2 of Form 86, the Applicant complained the Adjudicator failed to make sufficient enquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.
22. The Applicant also made complaints against the Director but I need not deal with those (see paragraph 13 above).
Court hearing
23. In Form 86, the Applicant requested a hearing. The hearing was scheduled for 22 June 2018. The Applicant did not appear. The Wolof interpreter called the mobile number which the Applicant had left on record. The Applicant told the interpreter on the phone that he had not received the notice of hearing. He said he could not come now as he was not feeling well. The Interpreter reminded him that if he wished to have another hearing, he should write to the court within seven days to make that request and to provide justification for his absence with sufficient proof. The Applicant was told if he failed to do so, the court would determine his application on consideration of documents only.
24. On 26 June 2018, the court received a letter from the Applicant. In the letter, the Applicant said “This was unintentional, but arose because my residential address had changed.” He said he “must keep the Court as well as others informed”. The Applicant asked for his record to be updated. However, he did not say anything about his allegation to the Wolof interpreter on 22 June 2018 that he was not feeling well then so he could not come right away. The Applicant attached no medical proof to his letter. He had not requested for a substituted hearing.
25. The Applicant failed to justify his absence on 22 June 2018. He had not requested for a substituted hearing nor had he shown he had further submission to make. I consider it was appropriate to determine his application for leave for judicial review on examination of documents only.
Discussion
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[10]
28. The Applicant complained the Adjudicator failed to appreciate his limitation in adducing proof. There was, however, no evidence to show the Applicant had any particular difficulty in proving his case. He arrived in Hong Kong as early as December 2012 and raised his non-refoulement claim in March 2014. He had ample time to prepare for his case. The Adjudicator was certainly aware of the Applicant's alleged situation.
29. Furthermore, the Applicant had legal assistance from the Duty Lawyer Service in both stages of the two-tier screening process. He was represented by a duty lawyer during the appeal. The Adjudicator’s report showed that the duty lawyer had argued diligently for the Applicant and the Adjudicator had engaged in joint endeavour with the Applicant (assisted by his lawyer) in the screening process. The Adjudicator made detailed inquiry of the Applicant's claim. The Applicant (and his lawyer) had been given reasonable and sufficient opportunities to state and elaborate the Applicant's case.
30. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant (assisted by his lawyer) in the screening inquiry. The Applicant (and his lawyer) had been given full opportunities to state and elaborate the Applicant's case. The Adjudicator was acquainted with the facts of the Applicant's case. She considered his claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in the Applicant’s complaints.
Conclusion
31. The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 13th day of September 2018
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(Alan Ngan)
for Registrar, High Court |
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 his 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 13/9/2018
Touray Ousainou
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 13/9/2018
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 378/16 (formerly RBCZ 3000338/14)
Chan ling-ling Tracy, Esq.
2nd Putative Respondent’s ref. no.:
USM 8691/17/10/21/GA68
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board’s decision, para 26.
[7] Ibid., paras 31-35.
[8] Ibid., paras 60-61.
[9] Ibid., paras 36-59.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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