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HCAL 336/2018
[2020] HKCFI 1402
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 336 OF 2018
BETWEEN
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Atukunda Grace Flavia |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 The Honourable Mrs Justice Campbell‑Moffat:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Procedural history
1. The applicant entered Hong Kong legally on 14 March 2013 and thereafter overstayed. She was arrested by the police on 2 May 2013. The applicant submitted a non-refoulement claim by way of written representation on 5 April 2013. She was released upon recognisance on 30 June 2013. Her non-refoulement claim form was submitted on 25 May 2016.
2. The applicant attended screening interviews on 22 June and 26 July 2016. The Director of Immigration (“the Director”) dismissed her claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 23 August 2016 and by Notice of Further Decision (re BOR 2) on 26 July 2017. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Grace Ma (“the Adjudicator”), heard her appeal on 14 November 2017. The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 12 January 2018.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 March 2018 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Ugandan national. She was born on 20 December 1979, in Kampala. The applicant is divorced and was self‑employed selling second‑hand clothes. In 2010, the applicant wished to establish a shop. In order to do so, she applied for a mortgage from two banks over property which was knowingly and fraudulently shown to be in her name. She did this with the assistance of someone called “Doreen”, who was the true owner of the property. Doreen was paid 1 million Ugandan shillings for this assistance out of the 5 million shillings obtained from the bank. This was to be repaid within eight months with interest on the capital sum of 1.4 million shillings. The applicant set up a restaurant and operated her clothes business from the funds but also gave a person called “Richard”, 3 million shillings to buy clothes from China. He did not do so. Whilst she was able to make some of the repayments on the monies owed to the banks, the applicant needed to obtain a further loan to make the remainder. This time the applicant used a loan shark who lent her 5 million shillings over six months with interest of 3 million. The applicant repaid the banks with this money and used the remaining 2 million for her restaurant business. In the interim however the bank had frozen Doreen’s land and Doreen had threatened the applicant about this and then assaulted her. According to the applicant, Doreen then sent a man to threaten her and distrain her goods. The applicant went into hiding but says she came to know that the police, Doreen and the applicant’s ex‑husband were looking for her. She therefore moved around frequently, eventually coming to Hong Kong.
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 she has substantial grounds for believing she will be subjected to torture if returned to her 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 she 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 her 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 she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her 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 she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her 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 her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that she is the subject of such risk. Under the HKBORO, she must show substantial grounds for believing that the harm which she 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 she 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[1].
Decision of the Adjudicator
8. The Adjudicator analysed the applicant’s claim on all applicable grounds. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator found there to be significant inconsistencies in the applicant’s story about her personal life and the allegation that she feared her ex‑husband would harm or kill her. The Adjudicator also considered the allegations in respect of the loans in some depth. This too she rejected and gave reasons for doing so. Given that the applicant was disbelieved, she had failed to make out her claim to the requisite standard.
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 her 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 her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her 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. The applicant was disbelieved on the facts and the Adjudicator explained why that was the case. I have not found any error of law or procedure on the part of the Adjudicator. 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 her case and enquired into that case appropriately. Taking her case at its highest, if she had not been disbelieved, the applicant would not have been able to establish her case under any head of claim. There is no criticism of the determination of the Adjudicator, which was open to her 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 she were to be granted leave. I therefore refuse leave for judicial review.
Dated the 30th day of June 2020.
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(Marcus Wong) |
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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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar:
(i) a copy of the sealed judgment or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and
d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and
e) comply with Order 59 of the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 30 June 2020
Atukunda Grace Flavia
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 30 June 2020
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4668/16/9/47/U13
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9002627/17
(formerly RBCZ 3000508/14) |
Form CALL-1
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