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HCAL 1050/2017
[2019] HKCFI 341
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1050 of 2017
BETWEEN
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Nnoli Chukwudi Kenneth |
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 24 February 2011 and thereafter overstayed. He was arrested by the police on 22 September 2015. The applicant submitted a non-refoulement (“NRF”) claim by way of written representations on 15 and 29 October 2015. His NRF claim form was submitted on 8 January 2016.
2. The applicant attended screening interviews on 8 and 22 April 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 20 May 2016 and by Notice of Further Decision (re BOR 2) on 10 March 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 13 June 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 10 November 2017.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 December 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 is Igbo and a Christian. He was born on 21 September 1979 in Otolo, Amambra State. In 1998, he moved to Kaduna State and opened his own mobile phone and computer accessories business. In October 1999, the applicant borrowed money for his business from someone called Balla, who is a Muslim and a sponsor of Boko Haram. His business operated inside the Central Market in Kaduna. Unfortunately, the market was bombed by Boko Haram in February 2000 which meant that the applicant and others were injured and had to leave the area. For several months, the applicant lived at a military base and then a camp operated by the police and the church. By mid-July the authorities had managed to push Boko Haram out of the city but they left it devastated. The applicant was able to return to his shop but his business needed to be re-established and therefore he sought an extension on his loan, which Balla refused. Nevertheless, during the next four years, nothing appeared to have happened as the applicant re-established his business but could not yet repay the loan. However, in November 2004, the applicant was stopped in the street by a group of men who threatened him and mentioned the debt owing to Balla. At one stage the group coming towards him with weapons was at least 10 string but the applicant promised to contact Balla and then ran away. As a result of that incident, the applicant did not return to his business but instead worked as a labourer, sleeping in church premises or squatting in houses. By doing that, he did not encounter Balla or his confederates again for some 18 months. In March 2006, the applicant was threatened by four men, one of whom had a hammer, which he threw at the applicant hitting him on the head. The applicant ran away but the attackers chased after him in their vehicle. He was able to escape by running down a narrow road. The head wound required two to three stitches but he was released by doctor immediately. Up to this point in time, the applicant made no report to the police because of Balla’s influential position. In order to flee the situation, the applicant went to stay with his brother in Rivers State. As a result, he was not the subject of any interference by Balla for the next two years but in 2008, he alleges that he was chased by Balla’s men who were in a car and once more, was able to escape uninjured. In December 2009, the applicant moved to Lagos and started a fashion and electronics business and travelled abroad for business. He encountered no problems for over two years but left Nigeria for Hong Kong on 24 February 2011.
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 and Further Decision of the Director
7. The applicant seeks to review the Decisions of the Director only. As the applicant has already utilised the channel of appealing the Director’s Decisions to the TCAB and the TCAB treated the appeal as a rehearing, the Decisions of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with. I have however considered whether there are any grounds for judicial review of the Adjudicator’s decision in order to save court time and expense.
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 noted that the applicant had remained undetected as an illegal immigrant in Hong Kong for some 4 ½ years but did not make his non refoulement application until a month after his arrest. The claim arises from a private debt owed by the applicant to Balla, with no state connection. The incidents were sporadic and little harm had been caused. He considered the relevant COI in respect of Boko Haram but as this was a personal debt, it was not established that there was any personal threat directed at the applicant by Boko Haram. In assessing the underlying facts, he correctly set out the law and key legal principles which were applicable in respect of torture, BOR 2 and BOR 3, including the burden and standard of proof.
9. In respect of persecution risk, the Adjudicator did not appear to set out the correct legal test when he found that the applicant had not suffered “severe injury or serious harm”, which would need to be proved to place him under this head of claim[1]. An applicant does not have to suffer severe injury or serious harm of the type suggested by the Adjudicator, in order to bring himself under this head of claim. They are not “virtually the same” as BOR 3. However, the facts of the applicant’s case do not establish the basis for a claim under this head and the Adjudicator’s error in this regard does not make any difference to the success of his claim here or in the tribunal below.
Leave to apply for judicial review
10. 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
11. 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 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
12. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any relevant error of law or procedure applicable to the facts of this case. 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. Save for that which has been mentioned at para 9 above, there is no criticism of his determination, which was open to him on the facts and reasonable.
13. In my judgement, even taking into consideration the views expressed at para 9 above, 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 12th 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 12 April 2019
Nnoli Chukwudi Kenneth
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 12 April 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3837/16/6/27/NI91
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2416/15
(RBCZ 9000655/17)
(formerly RBCZ 521/15)
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Form CALL-1
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