DOUZAN BI TOMMY ODILON ISMAEL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL2994/2018

[2019] HKCFI 3077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2994 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 6 August 2018 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  The applicant’s application is late. The Board’s Decision is dated 6 August 2018. His application is dated 28 December 2018. He had not stated the reasons for this late application. This is not an insignificant delay. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §§26 & 27. Delay in application for leave to apply for judicial review without satisfactory evidence to explain the delay will be sufficient ground to dismiss the application. Re Das Purnima Rani [2019] HKCA 669, 13 June 2019, §47.

3.  The applicant explained in court that he had been detained and were staying in parks from time to time. He was not aware of the time limit for his application.

4.  The applicant has to go to the Immigration Department every month and the Immigration Department must have informed him of the Board’s Decision. His explanation is therefore not attractive.

5.  However, this Court has to consider the merits of the case before making its decision, I shall consider the merits of the applicant’s case below.

The applicant

6.  The applicant is a national of Côte d’Ivoire. He arrived in Hong Kong on 30 December 2013 as a visitor and was allowed to stay until 1 January 2014. He overstayed. He surrendered himself to the Immigration Department on 21 January 2014. On 6 March 2014, he lodged a non-refoulement claim.

7.  His reason for his application is that if refouled, he would be harmed or even killed by Abou, his family and his associates as they blamed him for the death of Abiba, Abou’s sister. In addition, he also feared that he would be harmed by Les microbes (“the microbes”) upon his return to his country.

8.  The applicant claimed that Abou was a member of a political group called Forces Nouvelles (“the Rebels”). Abou had a sister called Abiba. He was Abiba’s close friend since 2012. In mid-2012, Abiba invited him to attend her friend’s birthday party. At the party, Abiba went outside to buy something. Shortly after she went out, another person came in and said that Abiba had been killed. He did not report the matter to police because he considered the Rebels were more powerful than the police and he might be killed. Abiba’s family took it that he had killed her. Abiba’s mother told him that Abou had threatened to kill him. The microbes were the young people in Ivory Coast. They spread terrorism and would kill people. He had never seen them before. He only learned about them through the internet.

The Director’s Decisions

9.  The Director considered his application only in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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 under RC”).

10.  By Notice of Decision dated 30 September 2015 (“the Director’s Decision”) and Notice of Further Decision dated 22 February 2017 (“the Director’s Further Decision”) collectively called the (“the Director’s Decisions”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

11.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 20 March 2017 and 12 April 2017.

12.  By Decision dated 6 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

13.  The Board considered the applicant’s evidence and found the following facts.

1. The fact that he went to and from Ivory Coast and Ghana showed that he was not in fear of Abou. [24 – 27]

2. It was unbelievable that he learned about the Abou incident when he was in China through his friends on the phone. [30]

3. It would be unlikely that Abou would still pursue the matter, given that 3 years have lapsed. [37]

4. He might relocate to somewhere else. [37 & 47] and

5. State protection was available to him. [38].

14.  It was on the above bases the Board rejected his evidence and found against him on his claim.

Application for leave to apply for Judicial Review

15.  In his Form 86 dated 28 December 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

16.  The applicant relied upon the grounds attached to Form 86 against the Director’s Decisions and the grounds against the Board. As explained below, his application for leave to apply for judicial review should be against the Board only, I shall focus his grounds against the Board’s Decision.

1. The Board reached the wrong decision.

2. The Adjudicator failed to give sufficient time and chance to arrange relevant evidence for his appeal.

DISCUSSION

The Director’s Decisions

17.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

18.  The applicant has not set out any exceptional circumstances.

19.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that 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. For these reasons we are of the view that the judge was correct to conclude that 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.”

20.  The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

21.  The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. He can read English, so he understood the Director’s Decisions and the Board’s Decision himself.

22.  It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim. Therefore, he has no factual basis for his claim.

23.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14.   Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

24.  Ground (1) is his opinion without any evidence to support it.

25.  Ground (2) fails as he had not raised this issue before the Board and he is unable to identify what evidence he intended to adduce for the Board’s consideration.

26.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

27.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for him to apply for leave for the intended judicial review. Accordingly, I dismiss his application.

28.  It is further directed that:

1. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

2. When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

3. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

4. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

5. Liberty to apply.

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