BAH MOHAMED BACHIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 791/2017

[2018] HKCFI 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 791 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 on legally on 18 June 2011 and was arrested by the police on 30 November 2011 for overstaying.  He was transferred to the Immigration Department on 1 December 2011.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 December 2011.  He was released upon recognisance on 8 January 2012.  His NRF claim form was submitted on 29 June 2015.

2.  The Applicant attended screening interviews on 12 February 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 15 July 2016 and by Notice of Further Decision (re BOR 2) on 24 August 2017.  The Adjudicator of the TCAB, Mr Fraser Syme, heard him on 29 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 8 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a national of Ghana.  He is a Muslim from Accra and is the child of the first marriage of his father, who has since remarried.  There is discord between the Applicant and his step family.  He maintains that his step-mother is trying to disinherit him and that she attempted to poison him.  He reported this to the police.  His step-mother then falsely accused the Applicant of being a homosexual and in 2011 of raping her.  The Applicant’s response to this accusation was to say that she had forced him to have sex with her.  The step-mother, her children and the neighbours then assaulted the Applicant and he fled to a nearby village.  He learned thereafter that an official complaint of rape had been made and that his step-mother had hired gangsters to find him.  As a result he obtained a false Guinean passport and ID and flew to Hong Kong from Ghana via Ethiopia.

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 (“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 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

7.  The applicant seeks to review the Decisions of both the Director and the Adjudicator. 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 Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing, despite the protestations of the Applicant as to the jurisdictional errors of the Director.  The Adjudicator accepted that the Applicant is a Ghanaian citizen despite entering Hong Kong in possession of a Guinean passport.  He was sceptical about the allegation of rape and indicated where he felt there were inconsistencies and improbabilities in his evidence.  He was even more sceptical about the Applicant’s ability to obtain a fraudulent passport and ID card in the nearby village to which he had fled and been assisted by an unknown neighbour or a friend.  He also found it surprising that the Applicant was seeking to obtain a new Ghanaian passport when, according to him, he is wanted by the police for both rape and homosexuality, which are mutually inconsistent crimes.  Those were not the only inconsistencies highlighted by the Adjudicator.  Having made his findings of fact and highlighted his areas of concern, the Adjudicator correctly set out the law and key legal principles including the burden and standard of proof and applied them before finding there was a low level of risk to the Applicant for the reasons given.

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 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

10.  There were no grounds of review. The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and 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.  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 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 determinations, which were 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