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HCAL 573/2019
[2022] HKCFI 1010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 573 OF 2019
BETWEEN
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Colley Ebrima A. |
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 legally on 20 August 2014 but thereafter overstayed. He surrendered to the Immigration Department on the day his visa expired and was released upon recognizance the next day. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 January 2015. His NRF claim form was submitted on 24 July 2017 and dealt with under the USM[1].
2. The applicant attended a screening interview on 14 August 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds (including that under BOR 2) by Notice of Decision (“the Decision”) on 22 September 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Bruce Henry (“the Adjudicator”), heard his appeal on 29 November 2018. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 14 February 2019.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 February 2019 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Gambian national. He is married with one son. He had 10 years of formal education and has an IT Diploma. He originally worked as a farmer and not in IT. For about a year, he worked as a freelance journalist. In 2013, the applicant was assaulted by an unknown group of men late at night but was fortunately unhurt. Although he reported the attack to the police, he could not provide sufficient information for an investigation to be mounted. In September 2013, a colleague of the applicant wrote an article critical of the current government. He was arrested and charged with an offence. That arrest made his fellow journalists uncomfortable and they went into hiding but were aware that someone was searching for them. The applicant assumed these men were from the National Intelligence Agency. As a result, the applicant decided to leave Gambia and came to Hong Kong via Senegal and China.
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 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[2].
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. Despite confirming that his claim arises from his concerns about his role as a journalist, the applicant could provide no evidence in support to show he had published any articles. As for the colleague who had been arrested and because of whom the applicant had fled Gambia, the applicant could not say why the Adjudicator could find no articles published by him either. At this point, the timeline originally offered by the applicant was undermined. He now suggested that his colleague was arrested prior to the single assault upon him by unknown men and not afterwards. He accepted he had come to no harm during the intervening months before he left Gambia. He accepted there was now a change of government in Gambia but that his tribal ethnicity put him at risk as did his support for Alliance for Patriotic Reorientation and Construction. The Adjudicator researched all relevant materials, correctly set out the law and key legal principles including the burden and standard of proof and found that the applicant had not satisfied the burden placed upon him.
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. 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
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: Peter Po Fun Chan v Winnie Cheung & Anor (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, due to the seriousness of the issues at hand, I have considered the papers carefully. I have not found any error of law or procedure by the Adjudicator. 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 applicant was unable to provide any evidentiary support on an issue capable of production without difficulty. There is no criticism of the Adjudicator’s determination, which was open to him on the facts and eminently reasonable[3].
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 7th day of April 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 granted, the Applicant or the Applicant’s 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 07/04/2022
Colley Ebrima A.
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 07/04/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8648/17/9/320/GA67
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1662/17 (fomerly RBCZ 10235/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Unified Screening Mechanism
[2] Re Moshsin Ali CACV 54/2018; [2018] HKCA 549
[3] Nupur Mst v Director of Immigration [2018] HKCA 524
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