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HCAL 824/2017
[2020] HKCFI 834
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 824 OF 2017
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Amadi Collins Chbuike |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative Respondent |
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Non-refoulement Claims Petition Office |
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and |
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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 18 March 2008 and surrendered to the Immigration Department on 25 July 2013 for overstaying. The applicant submitted a non‑refoulement claim by way of written representation on 23 April 2014. His non-refoulement claim form was submitted on 14 January 2016.
2. The applicant attended a screening interview on 14 July 2016. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 2 September 2016 and by Notice of Further Decision (re BOR 2) on 6 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Stuart Stoker (“the Adjudicator”), heard his appeal on 23 June 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 16 August 2017.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 31 October 2017 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Nigerian national. He was born on 16 September 1977, in Ulakwo Imo State. The applicant had six years of formal education and became a carpenter and electrician. He moved away from home to work in 2001, shortly after the death of his father. This claim arises from a land dispute between the applicant and his uncles as a result of that death. During the funeral, the applicant’s uncles wished his family to return the land to them. In 2002, two years later, the applicant was working in Port Harcourt, when he was attacked by a group of unknown men whom he believes attacked him on behalf of his uncle. His injuries were not severe and treated locally, save for a broken tooth which has been treated in Hong Kong. He did report the matter to the police and made a witness statement. Some eight months later, he was attacked again but suffered no serious harm. He maintains that his family have also been threatened and his brothers attacked over the same issue. It was not until 2006 to 2007, that the applicant decided to leave Nigeria and come to Hong Kong which he did via Lagos and Dubai in March 2008.
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 (“the 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 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 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 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. 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. The applicant relied upon a further argument that he was subject to persecution as being part of the Indigenous People of Biafra (“IPOB”), which he has joined since coming to Hong Kong, but no factual personal discrimination was put before the tribunal. The Adjudicator did not find the applicant’s account credible and explained where that was the case. He considered all relevant COI especially in respect of IPOB. In any event, and taken at its highest, the applicant had failed to establish his claim under any head.
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. By his letter dated 31 October 2017, 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.
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 15th day of May 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 15 May 2020
Amadi Collins Chbuike
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 15 May 2020
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4815/16/9/194/NI107
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9002008/17 (formerly
QA T/C 2598/15) (RBCZ 2583/14)
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Form CALL-1
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