Djenepo Sekou Ousmane v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1021/2017 on BabelCite. This High Court CFI judgment.
1. The applicant entered Hong Kong legally on 4 April 2015 using a Malian passport. He overstayed. He was arrested, convicted and received nine months’ imprisonment. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 3 February 2017. His NRF claim form was submitted on 20 April 2017.
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HCAL 1021/2017 [2018] HKCFI 2488 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1021 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by The Honourable Mrs Justice Campbell-Moffat:
Observations for the Applicant: Procedural history 1.The applicant entered Hong Kong legally on 4 April 2015 using a Malian passport. He overstayed. He was arrested, convicted and received nine months’ imprisonment. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 3 February 2017. His NRF claim form was submitted on 20 April 2017. 2.The applicant attended a screening interview on 9 May 2017. The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 31 May 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard his appeal on 30 August 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 8 September 2017. 3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. Background 4.The applicant is a Malian/Nigerian national. He was born on 5 February 1982, in Bamako, Mali, although his father was Nigerian and at the age of five, he moved to Nigeria to live. Most of his life has been spent in Imo State. He received 12 years of education and later ran a ladies wear, mobile phone and accessories company between 2007 and 2014. He is married with a son and daughter, who are all nationals of South Africa and who live in South Africa. His mother also lives with his wife in South Africa. The applicant’s family originally come from Biafra. In 2008, the applicant joined a group called the Indigenous People of Biafra (“IPOB”) and helped organise protests and meetings to agitate for the return of the Biafran state. The applicant also supported the People’s Democratic Party (“PDP”), which he had joined in 2011 and assisted in organising voting during elections, although he is no longer a member. In 2013, the applicant’s father was shot. The applicant does not know why but assumes it was because of his father’s affiliation with IPOB and PDP. In 2014, members of the Nigerian Army came to the applicant’s house to serve a warrant for his arrest. As he fled, he was shot in the leg. He ran to a safe IPOB house where a doctor removed the bullet and dressed his leg. A few days later he went to Lagos and then travelled to Mali without using any official checkpoint. The applicant’s family and friends arranged for him to have a passport in the name Djenepo Sekou Ousmane, whereas and in fact the applicants birth name is Okorie Stanley Onyekaozuru. From Mali, the applicant first wen to Macau where he stayed for several weeks before entering Hong Kong. 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:
6.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 7.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 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. He noted that, at the time of his arrest, the applicant had been trading in goods to Nigeria. He found that the applicant did not come to Hong Kong in order to seek the appropriate non-refoulement protection but in order to do business. There were a number of tangential issues raised by the applicant which were either illogical or inconsistent with his alleged fear of serious harm and the thrust of his claim was based upon his membership of IPOB, but there was no evidential nexus between the single shooting incident and his activities with that body. Much of his case was based upon speculation and assumption. He was not believed. Nevertheless, the Adjudicator considered his case under the various heads of claim and found that he had not established 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. 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 the Adjudicator when dealing with his application in order to obtain leave to judicially review him. Grounds of review 10.There were no grounds of review. He has not complained of any specific 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 11.Despite the fact that the applicant did not submit any proper grounds of review, I have nevertheless 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 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 he were to be granted leave. I therefore refuse leave for judicial review. Dated 14th day of December 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
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