Jaiteh Momodou L v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 960/2017

[2020] HKCFI 1081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 960 OF 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 17 June 2014 and thereafter overstayed.  He was arrested by the police on 6 March 2015 and convicted of overstaying on 20 April 2015 as well as trafficking in dangerous drugs (“TDD”) on 18 May 2015 for which he received in total a sentence of 12 months and two weeks.  Whilst in prison the applicant submitted a non‑refoulement claim by way of written representation on 6 July 2015.  He was discharged from prison on 14 November 2015 and released upon recognisance on 17 December 2015.  On 18 August 2016, he was arrested once more for TDD and convicted on 14 March 2017 and sentenced to 15 months in prison.  His non-refoulement claim form was submitted on 14 February 2017, whilst in prison.  He was discharged from prison on 17 June 2017.

2.The applicant attended a screening interview on 21 June 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 28 June 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Ian Candy (“the Adjudicator”), heard his appeal on 24 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 but refused his appeal on 3 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 Gambian national.  He was born on 25 June 1988, in Brikama Nyambai.  He is a Muslim and is single.  The applicant’s claim arises out of a car accident and his fear that family members of the victim of that accident will seek revenge against him as the driver of one of the cars.  The accident occurred in November 2013, when the applicant knocked down two school boys about seven to eight years old, who died as a result.  In fear of relation by the boy’s family, the applicant fled to Senegal but appears to have returned home the next day.  According to the applicant, the police came to make enquiries and as the applicant was not at home they arrested the applicant’s father.  The applicant did not go to the police station to help his father, instead, he went to Hamdalia on the border and then to a friend in Senegal before coming to China.

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 Director

7.The applicant seeks to review the decisions of both the Director and the Adjudicator.  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.  At the hearing the applicant sought to introduce a new evidence in support of his claim which was that his mother was related to the previous interior minister; a wanted poster and general COI, all of which the Adjudicator refused and gave his reasons for so doing.  He found the applicant’s evidence in respect of the traffic accident to be general and rather vague and some of which were not believable.  In fact, the Adjudicator did not believe the applicant had been involved in a traffic accident which had killed two boys.  Accordingly, and as there were no other heads of claim, the Adjudicator found he had not established his claim to the requisite standard.

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 save for a complaint that the decision of the Adjudicator was not fair.  The applicant seeks a re-hearing of his appeal.  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 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

11.Despite the fact that the applicant did not submit any grounds of review other than “unfairness”, I have considered the papers carefully.  The applicant was not believed.  It might have been more cautious to proceed upon an assessment of the applicant’s case regardless of that finding, as his case was extremely weak even upon that basis, especially as he appeared to be a fugitive from justice but the Adjudicator has no such duty.  If on a proper analysis he comes to the view, having heard the witness and given him an opportunity to state his case, that he is not credible, it follows that he has failed to establish his case.  I have not found any specific error of law or procedure by 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.  There is no criticism of his determination, which was open to him on the facts and 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 the 5^th day of June 2020.

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