Tijan Chongan v. The Director of Immigration and Another

HCAL1134/2017

[2018] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1134 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is an application taken out by the applicant pursuant to Order 53, rule 3 (2) of the Rules of the High Court (“RHC”) for judicial review of the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.The applicant requested a hearing.  The hearing was fixed at 10:00 am on 9 November 2018.  However, the applicant was absent on that day.

3.By an Order dated 9 November 2018, this Court dismissed his application for want of prosecution.

4.The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time.  Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons dated 27 November 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.

5.On 28 November 2018, this Court gave directions that a hearing be fixed at 10:00 am on 12 December 2018 and the applicant should file an affirmation to state his reasons for his absence on 9 November 2018 within 7 days from the date of the direction.

6.On 11 December 2018, the applicant filed an affirmation in which he said that on 9 November 2018, he had to attend the Eastern Magistracy for his bail.  He had annexed with his affirmation the court document.

7.I am satisfied with his explanation for his absence on 9 November 2018.

8.Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte.  Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 9 November 2018 dismissing his application.  The said order is now set aside.

9.I shall now consider the applicant’s application for leave for judicial review of the Director’s Decisions and the Board’s Decision.

The applicant

10.The applicant came from Gambia as a visitor and he was granted permission to stay in Hong Kong until 8 September 2014.  He overstayed and on 10 September 2014 he surrendered himself to the Immigration Department.  He lodged his non-refoulement claim on 24 September 2014.  He had been imprisoned for a drug charge.

The grounds of non-refoulement protection

11.The applicant claimed that if he were returned to Gambia, he would be harmed or killed by the people of the National Intelligence Agency because of the embezzlement and corruption case of his half-brother Ngou Bah.^[1]

12.The Director considered his application by reference to the following risks:

a.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”);

b.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”); and

c.   reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

The Director’s Decision and Further Decision (collectively “the Director’s Decisions”)

13.By Notice of Decision dated 6 November 2015 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement application for the reason that the applicant’s claim was not substantiated.

14.By another letter dated 15 March 2017, the Director invited the applicant to submit additional facts relevant to his application in relation to Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).  The applicant submitted additional facts in support of his claim under BOR 2 risk.  Having considered the facts, by Notice of Further Decision dated 30 March 2017 (“the Director’s Further Decision”), the Director refused the applicant’s application on the BOR 2 risk as well.

Appeal to the Board

15.By Notice of Appeal/Petition dated 18 November 2015, the applicant appealed against the Director’s Decisions.  The Adjudicator of the Board had held a hearing for the applicant.  He refused the applicant’s appeal and confirmed the Director’s Decisions.

Application for leave for judicial review

16.Pursuant to Order 53, rule 3(2) of RHC, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decision.  He referred to the grounds annexed with Form 86:

(1)   the Director had failed to give proper weight to state acquiescence in his case as there was collusion between the police and the high-up political circles;

(2)   the Director was unfair because he selected the Country of Origin Information (“COI”) in accordance with his pre-conceived conclusion and he did not give proper weight to the information in support of his case;

(3)   the Director had failed to consider that corruption is serious in Gambia and the administration of the government is incompetent;

(4)   the Director had failed to maintain high standard of fairness;

(5)   the Adjudicator had not made sufficient enquiry before making decision;

(6)   it was unreasonable for the Adjudicator to ask the applicant to adduce evidence to prove his case because the applicant was being detained; and

(7)   the applicant was not given sufficient chance to adduce the evidence.

DISCUSSION

The Direction’s Decision and Further Decision (“the Director’s Decisions”)

17.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter.  His appeal against the Director’s Decision had been heard and the Board had made its Decision.

18.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.  

19.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decision

20.The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

21.Grounds (1), (3), (4) and (5) above are bare allegations without facts or particulars. In my view, they do not constitute any substantive grounds in support of his application.

22.Ground (2) is a matter of fact to be found by the Board, having considered the relevant COI.

23.The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

24.At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

25.Ground (6) cannot sustain as the applicant bears the burden of proof as explained above.

26.As to ground (7), I have asked the applicant what evidence he thought should be adduced in support of his claim.  He told me that he wished to show to the Adjudicator that his half-brother was in jail and his father had passed away.  I consider that such information was not in dispute and the evidence could simply be given by oral evidence. The evidence will not take his appeal further.  This ground cannot sustain too.

CONCLUSION

27.I find that the applicant has failed to show that his application for judicial review has any prospect of success.  I refuse to give leave to the applicant for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated 19^th 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

Form CALL-1