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HCAL 355/2018
[2020] HKCFI 1404
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 355 OF 2018
BETWEEN
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Magoola Nadia Amira |
Applicant |
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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 23 March 2013 and thereafter overstayed. She surrendered to the Immigration Department on 26 November 2013. The applicant submitted a non-refoulement claim by way of written representation on 11 April and 2 July 2014. Her non-refoulement claim form was submitted on 20 January 2017.
2. The applicant attended a screening interview on 8 February 2017. The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 6 March 2017. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Adam Moore (“the Adjudicator”), heard her appeal on 15 September 2017. The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 9 February 2018.
3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 March 2018 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The applicant is a Ugandan national. She was born on 1 June 1969, in Kilobe but moved to Kampala in 1999. The applicant ran her own clothing business in Dubai and Uganda between 2005 and 2006 and then 2007 to 2010. In 2007, she gave birth to her daughter. In 2009, the applicant’s father passed away and left his land at Kasanga and Kayunga to one of his sons from his first marriage and to his step‑son, respectively. The applicant lived upon the land at Kasanga along with the remainder of her family members from the first marriage. Her step‑brother “Swaibu” wanted the land and in 2010 started to threaten the applicant’s elder brother. Shortly afterwards, the family home was burnt down. The applicant assumed this had been done by Swaibu. She reported the matter to the police who were investigating it. Shortly after this, the applicant says she was kidnapped by her step‑brother and taken to a mountain area, whereupon he put a gun to her head and told her to leave the land. Other than this verbal threat, nothing else was done and the applicant was returned to Kampala. This incident was not reported to the police and the applicant fled the country in fear. She says that since that date, the remainder of her family have been killed as she is next in line to inherit the land, she too would be killed if she returned.
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 she has substantial grounds for believing she will be subjected to torture if returned to her 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 she 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 her 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 she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her 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 she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her 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 her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that she is the subject of such risk. Under the HKBORO, she must show substantial grounds for believing that the harm which she 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 she fears.
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. Taken at its highest, the claim by the applicant did not evidence the minimum level of severity required to establish her claim under any head. The local authorities had been willing to investigate the arson and the applicant was able to re-locate if necessary. On the facts, the applicant had admitted that she had stayed in Hong Kong because her funds had run out and she had nowhere to stay. She had only sought protection on her second visit to Hong Kong. The current situation at home is that the land which she should inherit has now been sold by the step‑brother and therefore the underlying reason for the threat has been extinguished. More importantly, having analysed the factual basis of her claim, the applicant was disbelieved.
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 her application in order to obtain leave to judicially review them.
Grounds of review
10. There were no grounds of review. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her 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 her case and enquired into that case appropriately. There is no underlying basis for this claim today, even if there had been a basis previously. 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 she were to be granted leave. I therefore refuse leave for judicial review.
Dated the 30th day of June 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 30 June 2020
Magoola Nadia Amira
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 30 June 2020
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6554/17/3/209/U35
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3286/16
(formerly RBCZ 3000879/14) |
Form CALL-1
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