Mohamed Shabdeen Mohamed Gazari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 961/2017

[2019] HKCFI 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 961 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 lawfully on 30 October 2002 and was arrested on 25 October 2013 for overstaying.  He was transferred to the Immigration Department on 27 October and submitted a non-refoulement (“NRF”) claim by way of written representation on 29 October.  He was released upon recognisance on 5 December 2013.  His NRF claim form was submitted on 22 September 2015.

2.The applicant attended screening interviews on 1 December 2015 and 31 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 22 April 2016 and by Notice of Further Decision (re BOR 2) on 30 March 2017. He petitioned/appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Gina Towney (“the Adjudicator”), heard his appeal on 18 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 16 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Sri Lankan national.  He was born on 9 February 1977, in Colombo.  He is a Muslim and a Moor.  From 1999 to 2001, the applicant worked as a cashier in a casino.  In about 2000, the applicant started to deal in cannabis, which was illegal.  He supplied, amongst others, a person called Roshan but after a while Roshan stopped paying him for the cannabis and the applicant got into debt with his suppliers, who started threatening him.  The applicant decided to put pressure upon Roshan and, along with a group of friends, the applicant kidnapped Roshan and assaulted him.  As a result, the applicant and his friends were arrested the next day and whilst in custody he says that he was beaten by two police officers.  They were brought before the magistrate and remanded in custody for 12 days in order for the police to produce Roshan.  On the second and third hearings, the police were unable to locate him and therefore the assailants were eventually released upon bail but the applicant decided to go into hiding and did not attend any further hearings.  An arrest warrant was therefore issued against him.  The applicant obtained a passport on 30 September 2002 and left the country on 28 October, maintaining that the relevant officials were bribed in order to allow him to leave.

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

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 the 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.  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.  In particular, the Adjudicator referred to the applicant’s earlier desire to submit documentation in support of his claim and noted that a significant number of years had passed and no documentation was forthcoming.  The applicant maintained that he had no documents and could not obtain them because there were problems with Sinhalese and Muslims in Sri Lanka.  In any event, the documents referred to by the applicant were not directly relevant to the suggested fear of harm from Roshan. Although the Adjudicator was extremely sceptical about the applicant’s veracity, taken at its highest, the Adjudicator took the view that the greatest threat to the applicant, if his story were true, was lawful prosecution for an admitted assault.  Ultimately, having considered his evidence in detail, the Adjudicator rejected it, giving an explanation as to why that was the case.  On each occasion, giving the applicant an opportunity to answer it but without success.

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 his application in order to obtain leave to judicially review them.

Grounds of review

10.There were no grounds of review.  The applicant reiterates that he has been dealt with unfairly by reason of the fact that he has not been given more time to substantiate his claim with documentary proof.  The same complaint he made below and which was dealt with by the Adjudicator.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness other than that.  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 considered the papers carefully.  The unfairness which the applicant complains of is irrelevant to his claim.  Even if he can show that he was arrested, as he suggests, then he should face justice when he returns to Sri Lanka as he admits that he assaulted Roshan.  That would not be a sufficient reason to offer him protection under the relevant regime.  None of the documentation he wishes to rely upon support any suggestion of previous harm or potential harm from Roshan and that is the only harm which he says he fears.

12.I have not found any error of law or procedure on the part of the Adjudicator.  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 and extensively.  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 the 30^th  day of April 2019.

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