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HCAL738/2017
[2019] HKCFI 2060
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 738 of 2017
BETWEEN
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Melemoko Ndiala Saint Juste Seguy Lionel |
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 Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of the Central African Republic (“CAR”). He is now aged 32 (DOB: 20-11-1986).
2. The Applicant claimed he would be harmed or killed by a rebel coalition called Seleka.
3. Kwa Na Kwa (“KNK”) was a political party in CAR. It came to power in 2003.
4. Around 2009, the Applicant’s father formed a political group to support the KNK government. The Applicant later became the leader of the youth branch of the group.
5. In 2013, Seleka brought down the KNK president. They engaged in looting and persecuted the Christians.
6. On 24 October 2013, some Seleka people abducted the Applicant's father. There was no way to ask for police assistance because Seleka occupied all the police stations. The country was in chaos.
7. The following night, some Seleka people forced into the Applicant's house. They tried to look for the Applicant. The Applicant's mother lied to them that the Applicant was not at home. Those men then left.
8. The Applicant was sent away by his mother to live with a cousin in Bimbo because she believed the Seleka people would kill the Applicant.
9. The Seleka people also appeared in Bimbo. They killed one of the Applicant’s neighbours due to a dispute and his Christian belief. The Applicant was scared. He was a Christian. He decided to leave CAR.
10. The Applicant originally planned to go to China. He, however, changed his mind and went to the neighbouring country Cameroon on 19 December 2013.
11. When the Applicant was in Cameroon, his friend told him the Seleka people were at the border and had killed some people. The Applicant felt unsafe. He left Cameroon for China on 21 December 2013. He arrived in China on 23 December 2013.
12. The Applicant came to Hong Kong as visitor on 5 January 2014. He overstayed after 19 January 2014. He surrendered to the Immigration Department on 21 January 2014 and raised a non-refoulement claim on 27 January 2014 and 3 March 2014.
13. The Applicant kept contact with his brother in France. He learnt the Seleka people tried to kill one of the founding members of his youth group in mid-2014. Another brother of the Applicant’s was killed by Seleka on 2 June 2014. The whereabouts of the Applicant's father was still unknown. His mother and siblings had moved away to live in another place of the country.
14. In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
15. On 6 October 2017, the Applicant applied for leave for judicial review.
Respondent/Interested party
16. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first. The applicant may appeal to the Board which deals with his/her case on a rehearing basis.
17. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent. The Board is the putative respondent; the Director must be the putative interested party.
The Director's decision
19. In his decision dated 27 May 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s claim with respect to those three applicable grounds.
20. In his further decision dated 14 June 2017, the Director did not accept the Applicant faced any BOR2 risk. He rejected the Applicant’s claim with respect to this last applicable ground.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed him on 3 June 2016.
22. Although it was stated on the first page of the Adjudicator’s report that the Applicant was ‘in person’, the Adjudicator mentioned in the content that there was a counsel Ms. Vicky Chung representing the Applicant. [The Duty Lawyer Service confirmed by a letter dated 23 August 2018 that Ms. Chung did represent the Applicant in the appeal hearing on 3 June 2016.]
23. After the Board hearing on 3 June 2016, the Director invited the Applicant to submit additional facts with respect to the last applicable ground: BOR2 risk. The Duty Lawyer Service continued to represent the Applicant. Further submissions were made to the Director on 8 June 2017.[6]
24. On 14 June 2017, the Director rejected the Applicant's claim with respect to BOR2 risk.
25. There was no further Board hearing. The Adjudicator made his decision with respect to all the four applicable grounds on 7 July 2017.
26. On the Applicant's account of events, the Adjudicator found Seleka were just a group of bandits trying to take over CAR. They did not represent the government. The Adjudicator noted the Applicant had not suffered any ill-treatment to a minimum level of severity. He was not satisfied the Applicant had any torture risk, BOR2 risk or BOR3 risk.
27. The Adjudicator appeared to accept there had been persecution in the Applicant's case[7]. He, however, noted from relevant country-of-origin information ("COI") that there was a ceasefire agreement among rival factions in CAR including Seleka. The situation in the country had been improving. The government was making attempts to bring the people together for reconciliation and development. It was rebuilding the society and establishing the rule of law. A new president won the election in March 2016. The country returned to ruling by civilians. It had established a special criminal Court to deal with serious crimes. The Adjudicator found reasonable state protection was available to the Applicant and it was safe for the Applicant to return to CAR.
28. The Adjudicator in the end rejected the Applicant's appeal with respect to all the four applicable grounds: torture risk, BOR2 risk, BOR3 risk and persecution risk.
Grounds of judicial review
29. In section B of the Annex to Form 86, the Applicant complained an additional bundle was submitted by the Director only one day before the Board hearing scheduled for 3 June 2016. The duty lawyer representing him had no time to review the documents. The lawyer only briefly explained the Director's submission to him on the day of the hearing, giving him no meaningful opportunity to respond.
30. The Applicant said the Board's decision was an unfair one. The Adjudicator failed to make a rational and/or reasonable evaluation of COI. He cherry-picked information and failed to justify his preference of information. The Applicant accused the Adjudicator of failing to consider reliable and accurate information but relying on outdated information. The Adjudicator failed to consider the escalation of violence in CAR since 2016. The Applicant claimed it was unsafe for him to return to his country. He said CAR was still in a state of conflict and civil war. There was life risk. The Applicant said the Adjudicator failed to assess state protection properly. He referred to COI which stated the civilians were attacked and a functioning national judicial system was lacking in the country. The Applicant said he was not asked of the updated situation in CAR during the Board hearing or given any opportunity to explain further.
Court hearing
31. The hearing was scheduled for 21 August 2018. The notice of hearing was sent to his reported address but it was returned. The Applicant was absent from court on 21 August 2018.
32. The Applicant had left two mobile phone numbers on record. Calls were made to those numbers. One was invalid. The other was answered by a Chinese man, who said he did not know the Applicant.
33. The court has not heard anything from the Applicant for his absence on 21 August 2018.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [9]
36. Upon the Applicant's complaints, the court enquired with the Duty Lawyer Service. They replied in a letter dated 23 August 2018 that the Applicant was represented by counsel Ms. Vicky Chung at the Board hearing on 3 June 2016. The Duty Lawyer Service said they received the main bundle on 27 May 2016. A copy was given to the Applicant at a conference between Ms. Chung and the Applicant (date not specified). The Director provided an additional bundle to the Duty Lawyer Service on 2 June 2016 and that was handed to the Applicant in the pre-hearing conference on 3 June 2016.
37. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
38. The main appeal bundle was served on the Applicant’s lawyer 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 3 June 2016. It was served in time.
39. The additional bundle was served on the Applicant’s lawyer on 2 June 2016. There was no evidence that it was difficult or voluminous. If there was any prejudice arising from the late addition, the duty lawyer certainly would raise it with the Adjudicator and ask for an adjournment. There was no such record.
40. The Applicant said his lawyer had no time to review the documents in the additional bundle and he was not given any meaningful opportunity to respond. However, the Applicant only stated his complaints in Form 86 but not in his affirmation. He did not attend the court hearing to affirm his complaints. There was also no affirmation from the said duty lawyer to support his claimed prejudice. The letter from the Duty Lawyer Service stated when the main appeal bundle and the additional bundle were received and how they were conveyed to the Applicant. There was a pre-hearing conference between the Applicant and his lawyer on 3 June 2016. There was no evidence the Applicant had been prejudiced in that circumstance, who was assisted by counsel. There was no evidence the lawyer had failed her duty.
41. The Applicant said he was not asked of the updated situation in CAR during the Board hearing or given any opportunity to explain further.
42. The Applicant after the Board hearing was invited by the Director to submit additional facts for the consideration of his claim. The Applicant’s lawyer made further submissions dated 8 June 2017. The submissions were concerned with COI relating to CAR. The Director noted the submissions and reported in his further decision on BOR2 risk dated 14 June 2017. The Adjudicator was certainly aware of the situation as he was aware BOR2 risk was also an applicable ground to be considered on appeal. There is no reason to doubt the Adjudicator had not considered the Applicant's further submissions dated 8 June 2017 when the Adjudicator said he had considered the COI cited by the Applicant[12] .
43. There were different views of CAR’s stability. The Adjudicator was bound to make a judgment after studying the relevant COI. However, he need not state the mental process of his judgment. He need not recite all the COI he had considered. That he mentioned the information he considered reliable but not those he attached less or no weight does not mean he had neglected any relevant information or cherry-picked information.
44. The Applicant complained the 2014-2016 information about CAR was outdated and inconsistent with the 2017 information which he had submitted to the Director. I cannot agree. The more recent information only showed the situation in CAR was not settled completely rather than saying the country was an anarchy or a lawless state. It was apparent from the Adjudicator’s report that he was aware of the imperfection there. However, he was right to say reasonable state protection did not mean risk-free life or guaranteed safety.
45. The Applicant said civilians were attacked in CAR but his own COI also stated that additional forces were being deployed by the government to neutralize attackers, protect civilians and facilitate critical humanitarian support to the population. There was problem in the country but the government was tackling. It was not Wednesbury unreasonable for the Adjudicator to find reasonable state protection was available in CAR.
46. The Applicant said the appeal hearing was unfair. I cannot agree. The Adjudicator had given the Applicant and his lawyer reasonable and sufficient opportunities to state and elaborate the Applicant's case. There was no further hearing after the Director's further decision on BOR2 risk but the Applicant failed to establish a further hearing was necessary. He failed to show he had ‘worthwhile or effective representations’ to make if there was a further hearing before the Adjudicator. There was no evidence the Applicant had been prejudiced.
47. The Applicant complained the Adjudicator’s decision was unreasonable or irrational. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant and his counsel in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
48. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave to apply for judicial review.
Dated the 21st day of August 2019
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(Henry Ng)
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 21/8/2019
Melemoko Ndiala Saint Juste Seguy Lionel
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 21/8/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16667/15/6/53/CAF2
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 580/14 & RBCZ/9001902/17 (formerly RBCZ 3000014/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Director's further decision dated 14 June 2017, para 3.
[7] The Adjudicator’s report, para 27.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] The Board's decision, para 35.
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