Case Document

100%Judiciary

HCAL 971/2017

[2020] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 971 OF 2017

BETWEEN

	Ally Ayubu Jumbe	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	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

Orders by The Honourable Mrs Justice Campbell‑Moffat:

1. Extension of time for leave to apply for judicial review be allowed.

2. Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong legally on 31 August 2014 and thereafter overstayed. He was arrested by the police on 7 March 2015 and submitted a non-refoulement claim by way of written representation on 10 March 2015. He was released upon recognisance on 22 April 2015. On 26 September 2015, he was arrested for an unrecorded offence, for which he was sentenced to eight months’ imprisonment on 28 September 2015. He was discharged from prison on 5 March 2016. His non-refoulement claim form was submitted on 15 April 2016.

2.The applicant attended a screening interview on 11 May 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 27 July 2016 and by Notice of Further Decision (re BOR 2) on 4 August 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“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 25 August 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 29 November 2017. He was four days late in so doing but this court has granted him an extension of time so to do. He did not request an oral hearing for his application for leave. The matter was therefore considered on the papers.

Background

4.The applicant is a Tanzanian national. He was born on 1 April 1985, in Tanga. He received 11 years of formal education and worked as a businessman in Dar‑es‑Salaam between 2006 and 2013. He is single and was a Muslim but converted to Christianity in 2016, whilst imprisoned in Pik Uk. The applicant’s claim arises out of a dispute with his brother‑in‑law “Rajabu”. In 2006, the applicant and Rajabu started a garment business together, in which the applicant operated the business and Rajabu provided the finance. In 2013, the applicant travelled to China to purchase goods. Whilst in China, the applicant maintains that USD 9,000 was stolen from him. He says that he reported the matter to the local police and to his brother‑in‑law, who was very angry and who threatened to kill the applicant if he returned to Tanzania. In fear for his life, and believing Rajabu was capable of having him killed in China, the applicant fled to Hong Kong. He adds that since then, he has converted to Christianity and that his home state is ruled by Sharia law and therefore he is at risk of being killed for his faith.

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 and Further 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[1].

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. The Adjudicator considered both the issue of the applicant’s conversion and of the threat from his brother-in-law and took account of all relevant COI. She considered the facts, assessed his credibility and then she correctly set out the law and key legal principles including the burden and standard of proof. The Adjudicator suggested that both Muslim and non-Muslim people lived together peacefully in Tanzania and that the mix was 50/50. The applicant accepted this general premise and that he could re-locate, however he said that if his family were to find out about his conversion they would kill him. He added, for the first time, that there was a group called “Uamsho” who had warned his family that he should not return. Even though the Adjudicator did not accept his claim that he had recently converted to the Christian faith, she nevertheless assessed the claim with the benefit of that assertion and found it wanting. As for the financial debt owed to the brother-in-law, the Adjudicator noted that she had difficulty obtaining satisfactory particulars on that issue and that it was clearly a personal debt, if it existed, which was a matter between family members and there was no state involvement.

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 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, I have considered the paperscarefully. I have looked in particular inter alia, into the suggestion that the applicant was at risk of persecution in his home state for converting to Christianity and whether he had shown a well-founded fear of persecution for a Refugee Convention reason. Having done that, 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 her determination, which was open to her on the facts and was 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 the 5^th day of June 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 5 June 2020 Ally Ayubu Jumbe 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 5 June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4364/16/8/83/TA8 Department of Justice for Director of Immigration Putative Interested Party’s ref. no.: QA T/C 673/16 (formerly RBCZ/10910/15) RBCZ/9002418/17 QA/528/17 [previously RBCL/622/15 (CZ)]