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HCAL 602/2019
[2022] HKCFI 710
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 602 OF 2019
BETWEEN
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Onyeji Chimezie Kingsley |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 lawfully on 27 April 2014 on a visitor’s visa. He overstayed and was arrested by the police on 16 July 2014. He was transferred to the Immigration Department on 18 July 2014. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 July 2014. He was released upon recognisance on 19 August 2014. His NRF claim form was submitted on 31 July 2017 and dealt with under the USM[1].
2. The applicant attended a screening interview on 21 August 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds including BOR 2 by Notice of Decision (“the Decision”) on 31 August 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard his appeal on 20 August 2018. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 31 December 2018.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 4 March 2019 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 1 January 1975, and lived in Anambra State. He is Igbo and a Christian. He received a formal education up to 16 years of age, at which point he obtained a computer apprenticeship in Lagos. In 2003, he set up his own computer accessories business. In 2013, the applicant sought a loan in order to set up a phone business in Abuja. Unfortunately, in 2014, his stock was destroyed by Boko Haram and the loan repayment fell due in full. The applicant was threatened that if he did not repay the loan he would be killed. As a consequence he fled Nigeria for 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 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 of the Adjudicator
7. The applicant seeks to appeal the Decision of the TCAB dated 31 December 2018. The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing with an Igbo interpreter and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof.
Leave to apply for judicial review
8. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him/her.
Grounds of review
9. There were grounds of review attached to his affirmation in support of his Form 86 dated 4 March 2019, however these did not appear to be relevant to the case of the applicant[2]. Insofar as any of these grounds, which were clearly drafted for a different case, can be said to be relevant to the case of the applicant, the applicant submits inter alia that he was treated unfairly by reason of the fact that he was not provided with legal representation. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The Duty Lawyer Scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. As the applicant did not request an oral hearing before this court, I am unable to ascertain if he did apply to the scheme for legal representation and if they did refuse his application, on what grounds they refused it. This ground is not reasonably arguable.
10. The applicant also appears to submit that he was not informed that he could complain in his language[3]. He does not specify what he wished to complain about, to whom and when. The applicant had the benefit of an Igbo interpreter at the time of the hearing before the TCAB and was provided with the opportunity to say anything he wished. He was thereafter provided with a copy of the Decision and has exercised his right of judicial review. The undersigned fails to understand the significance of this complaint. It has no merit.
11. There are no particulars provided for any of the applicant’s grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicant and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicant has a duty to state the grounds of his intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. It is incumbent upon the applicant to make good his grounds, which he has failed to do. Without more, the court is restricted to that which is self‑evident from the papers. All of the applicant’s grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case.
Conclusion
12. Despite the fact that the applicant did not submit any proper grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds 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. The facts as presented by the applicant to found his claim were very straight forward and upon any view of the regime, do not fall under any head of claim. There is no criticism of his determination, which was open to him on the facts and eminently reasonable[4].
13. 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 March 2022.
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(Trista 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/s 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 judgement 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 the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 15/03/2022
Onyeji Chimezie Kingsley
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 15/03/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8467/17/9/139/NI154
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1637/17 (formerly
RBCZ 3001398/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Unified Screening Mechanism
[2] The first ground complains that there was not an oral hearing when an oral hearing was held on 20 August 2018. The grounds also refer to the applicant as a woman when he is clearly not. The second ground is not supported by any allegation in support, it is simply a statement of the law.
[3] Ground 3
[4] Nupur Mst v Director of Immigration [2018] HKCA 524
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