Ssenoga Lawrence v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 909/2017

[2018] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 909 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

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 11 October 2010 and left on 5 November 2010 but returned on 8 November 2010 and thereafter remained unlawfully.  He was arrested by the police on 30 July 2011 and was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 1 August 2011.  His NRF claim form was submitted on 15 June 2015.

2.The Applicant attended a screening interview on 29 June 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 August 2016 and by Notice of Further Decision (re BOR 2) on 18 July 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 17 August 2016.  The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard his appeal on 6 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 27 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Ugandan national.  He was born in Kawanga, Uganda.  He lived and worked as a freelance photographer in Kampala.  The Applicant’s claim arises out of his relationship with “Henry”, who was running for local election and “Patrick”, who was in opposition.  In 2006, the Applicant supported Henry in his canvassing for election as a councillor and believed that Patrick was harassing him as a result, although he does not mention any specific verifiable incidents of such harassment.  At some stage, Henry withdrew from the election because he had been very severely beaten up and the applicant ceased his involvement in local politics.  Patrick won the election.  In 2007, after the election, the Applicant was arrested and taken to CID headquarters where he met Patrick, who was armed with a gun and who told the applicant to “back off”.  The applicant was detained for four days without charge.

5.Between 2007 and 2010, the Applicant saw Patrick on several occasions and on one of them Patrick verbally abused him and threatened to kill him but no actual harm was done to him at any time and on most of those occasions, it was simply a matter of seeing Patrick in the street or at a venue when there was no exchange between them.  Nevertheless, in 2010, the Applicant decided to leave Uganda.

The non-refoulement claim

6.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 the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.It is the duty of 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 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

8.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.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator went to some lengths to establish the veracity of the Applicant’s claim.  There was no record of Patrick’s election.  In answer to this, the Applicant reduced the status of his official position to that of Parish Councillor.  Even so, the Adjudicator could not find such a position within official records.  It did not advance the applicant’s case that he attempted to produce an electioneering poster which he said was dated 2006 to evidence Patrick’s campaign but the poster was in fact dated 2016.  At that point, the applicant suggested that Patrick had once again been elected in 2016.  That election could not be verified in public records either.  It was not surprising therefore that the Adjudicator found the applicant’s case to be without any foundation and not credible.  He was disbelieved and failed to satisfy the burden placed upon him.

Leave to apply for judicial review

10.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 Decisions of the Director and 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 his application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review.  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 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

12.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 his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

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 16^th day of November 2018.

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