MOHAMEHD ALI alias MOHAMMED ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent, and the Director of Immigration be named as the Putative Interested Party.

2.   The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 17 February 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against “the decisions made by the appeal board and the Director of Immigration…dated 15 Aug 2008”.

2.  There were 2 rounds of proceedings that concern the Applicant:

(1)   First, there was a decision by an Adjudicator (Torture Petitions) dated 25 October 2012 (the “1^st Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 14 September 2012, relating to the Applicant’s torture claim;

(2)   Second, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 October 2018 (the “2^nd Decision”), which affirmed the decision of the DOI dated 15 September 2017.  These decisions concerned the Applicant’s non-refoulement claims under other applicable grounds apart from torture risk.

3.  To err on the side of caution, I am prepared to regard the Form 86 as an application for leave to apply for judicial review against both the 1^st Decision and the 2^nd Decision.

4.  I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

5.  The Applicant requested for a hearing of this application but he was absent at the hearing.  I shall deal with this application on paper.

Background

6.  The Applicant is a national of Ghana.  He seeks non-refoulement protection on the basis that he would be killed if he is to return to his home country by the Ewe Tribe’s ten “kingmakers” because he had refused to become the tribal king (the alleged ritual was that he would have to cut off the head of another person before he may become king, and if he should refuse he would be killed).  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the 1^st and 2^nd Decisions, which can be viewed through a hyperlink[1] [2].  I shall therefore not repeat them.

Discussion

7.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the 2 decisions and the materials adduced by the Applicant.

8.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

10.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the 2 subject decisions in the Form 86 nor in his affirmation in support, apart from stating that his life remained in danger.

11.  As can be seen from the 2 decisions, the Adjudicator / TCAB took into account all the evidence available [1^st Decision 1, 4-5, 2^nd Decision 1-23] and found that on the basis of the same, applying also the correct legal principles in respect of the applicable grounds [1^st Decision 2-3, 2^nd Decision 53-56, 59, 61-63] and taking into account Country of Origin information [2^nd Decision 47-48], the Applicant’s allegations were insufficient to make out any of the applicable grounds [1^st Decision 7-14, 2^nd Decision 24-52, 57-58, 60, 64].  The TCAB specifically raised doubts about key aspects of the Applicant’s evidence and concluded that he did not face a real chance of harm [2^nd Decision 51-52].

12.  It is self-evident that in its deliberation of the 2^nd Decision, the TCAB was entitled to consider and rely on the findings in the 1^st Decision.  As the TCAB identified, there was no change of circumstances identified and the claims were essentially advanced on the same footing [2^nd Decision 11].

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 1^st or 2^nd Decisions, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the 2 decisions is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.  I further note that the application both against the 1^st and 2^nd TCAB Decisions was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the respective decisions were made.  Since I have held that the application is without merit, I also refuse to grant an extension of time (there was no explanation for the very significant delay in any event).

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

Form CALL-1