Case Document

100%Judiciary

HCAL 526/2017

[2020] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 526 OF 2017

BETWEEN
	Doucoure Adama	Applicant
	and
	Torture Claims Appeal Board /	Putative Respondent
	Non-refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

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 March 2014 and thereafter overstayed. He surrendered to the Immigration Department on 7 April 2014. The applicant submitted a non-refoulement claim by way of written representation on 7 April 2014. His non-refoulement claim form was submitted on 8 September 2014.

2.The applicant attended a screening interview on 16 December 2014, 11 March 2015 and 6 April 2016. The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 19 July 2016 and by Notice of Further Decision (re BOR 2) on 17 July 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Fraser Syme (“the Adjudicator”), heard his appeal on 25 July 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 4 August 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 August 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Malian national. He was born on 18 July 1990, in Kidal. He was not raised by his natural parents but by a couple who were Djihadists, and he was raised as such. In 2008, the applicant believes he met his birth mother by chance. When he questioned his adoptive mother about it, she became angry and would not answer his questions. Hours later, the applicant was arrested and taken back to his home village away from his natural mother. When he reached his home village he was taken to an unknown locality and tortured with iron wire which ripped both his skin and muscles. After 10 minutes someone treated his wounds and fed him. He was then left tied to a chair for a week. He was not assaulted again and was fed twice a day. After a week, he was told by the police that he would become a Djihadist or he would be killed, as would his natural birth mother and her child. He was then sent back to the Ivory Coast to study. To do so, he was given, money, passport and a student card. He went first to Ivory Coast but in 2010, he was sent for further training to Algeria. However, he says that when he returned from Algeria, he decided to be a member of the National Movement for the Liberation of Azawad (“the MNLA”) in secret, whilst working for the Djihadists, so that he could pass on intelligence. He was then sent for military training and later the Djihadists wished him to spy for them. In 2013, the applicant maintains that he was framed by the Djihadists and was arrested and detained by the police. He says he was assaulted by the police and was later taken to hospital for treatment from where he managed to escape. The applicant fled to his home village to seek justice and worked for the MNLA. As a result of further turmoil in his home country, the applicant came to 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:

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 (“the 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 both 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 of the Adjudicator

7.The applicant has had a poor relationship with the Immigration Department. Their attempts to secure a productive screening interview with him and the history of avoidance was troubling. He was also late in filing his appeal to the TCAB, however the Adjudicator gave him the benefit of the doubt despite providing no reasons for his delay. At every turn, the system has been implemented in favour of the applicant. The Adjudicator analysed the applicant’s claim on all applicable grounds. He had a substantial array of papers before him. 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 canvassed in some detail the Marabout, Djihadists and MNLA, and found his account inconsistent with his previous submissions. Those inconsistencies were extensive and were detailed by the Adjudicator in his report. In doing so, the Adjudicator displayed an extensive knowledge of the local political situation. The applicant was not believed and as a consequence he was found not to have established his claim to the requisite standard.

Leave to apply for judicial review

8.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

9.There were no grounds of review save for the bare complaint that the Adjudicator had not considered the actual situation on the ground. 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 show 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

10.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have looked in particular inter alia, into the suggestion that the Adjudicator had not apprised himself of the local situation where relevant to this claim. That was clearly not the case. Further, I have not found any error of law or procedure. I see no evidence of procedural unfairness (quite the opposite) 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.

11.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 15^th day of May 2020.

	(Marcus Wong)
	for Registrar, High Court

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.

Notes for the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar: (i) a copy of the sealed judgment or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and e) comply with Order 59 of the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 15 May 2020 Doucoure Adama Applicant’s ref. no.: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 May 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4366/16/8/85/ML16 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9002595/17 (formerly RBCZ 1569/14)