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HCAL 60/2018
[2019] HKCFI 485
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 60 of 2018
BETWEEN
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Fatajo Abdoulie |
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 lawfully on 19 July 2014 from China but thereafter overstayed. He surrendered to the Immigration Department on 20 October 2014. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 14 November 2014. His NRF claim form was submitted on 27 April 2017.
2. The applicant attended a screening interview on 5 May 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 15 May 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Ian Wingfield (“the Adjudicator”), heard his appeal on 7 November 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 8 December 2017.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 January 2018 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Gambian national. He was born on 6 January 1978, in Kerewan. The applicant’s father had two wives. The applicant was the son of his second wife. Both wives and their children lived together. The applicant qualified as a teacher. His father was a farmer and owned his own land. He passed away in 2000 or 2001. Thereafter, there was some friction between the two wives and their sons. The applicant was assaulted by his half-brothers several times but received only minor injuries. This was because they disputed his right to farm the family land. They assaulted him with their bare hands and also with sticks. This was not reported to the police as it was a family matter. The applicant did not want his step-brothers to go to jail and he did not seek police protection for that reason. It had an adverse effect upon his teaching as he was moody and lost patience with his students. However, in June 2007, the applicant moved to Talinding, where he lived until he left Gambia in 2014. During that period, his step-brothers came to Talinding and verbally abused him as well as assaulting him on several occasions. He says, on one occasion his teeth were knocked out. Otherwise, he only ever suffered minor injuries which he treated himself. He did not report these latter incidents to the police because he still considered it a family matter. The applicant says that, in order to save his life, he came 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 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 the 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 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. He correctly set out the law and key legal principles including the burden and standard of proof. He found that there were significant inconsistencies within the applicant’s case. His claim lacked specificity in some respects and there was a significant difference over dates and events. His evidence in respect of his employment and earnings also gave cause for concern. Whilst the Adjudicator accepted some parts of his evidence, he rejected other parts and on the whole, the applicant was disbelieved. He had therefore failed to satisfy the burden placed upon him to establish his case.
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 his 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 his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his 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. 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 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 determination, which was open to him on the facts and eminently reasonable. It is noted that even if the applicant’s case had been taken at its highest, he would have failed to establish the burden placed upon him.
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.
Dated the 24th day of April 2019.
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(Marcus Wong)
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
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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 24 April 2019
Fatajo Abdoulie
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 24 April 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7261/17/5/267/GA48
Department of Justice for Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 640/17 (formerly RBCZ 3002141/14)
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Form CALL-1
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