Case Document

100%Judiciary

HCAL 1846/2018

[2020] HKCFI 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1846 of 2018

BETWEEN

	Drammeh Muhammed	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 documents only; or
	consideration of documents and oral submission 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 15 November 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the words USM and replaced them by the Board as proposed respondent and deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Gambian national. He came to Hong Kong on 9 May 2014 as a visitor. He overstayed since 8 August 2014. On 22 September 2014, he surrendered to the Immigration Department. He lodged a non-refoulement claim on 29 September 2014.

5.He claimed that if refouled, he would be harmed or even killed by his brother Modou because his brother blamed him for calling the police to arrest him after he injured some people in the neighbour. He was also afraid that he would be arrested by Gambian police as he had injured Modou.

6.His brother Modou was a mental patient. In 2010, Modou took a knife and attacked his neighours. They were angry and demanded the applicant to report this matter to police. He complied with the neighbours’ request. As a result, Modou was detained in mental hospital for two years. Modou knew that he had reported the case to police and threatened that he would kill him. Modou recovered and was discharged from hospital. On 24 December 2013, Modou took a metal rod and attacked him on his leg. His leg bled. He snatched away Modou’s metal rod and hit him. Modou fell on the ground unconscious. He learned that Modou had recovered, but he continued to say that he would kill him. He was also afraid that he might be arrested by police for hurting Modou. He ran away and lived in other places. He stayed in Senegal where his friend advised him to go to China in April 2014. He left Senegal for China where he stayed for a while. Then he came to Hong Kong.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

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

b.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”);

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

d.risk of persecution by 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”).

8.By Notice of Decision dated 23 June 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of harm from Brother Modou upon his return was low [14]; that state protection was available to him [17] and internal relocation was an option open to him [18].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 29 June 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that he was not a credible witness. His evidence strongly indicated that his reason of coming to Hong Kong was economic. The fact that he said that he did not speak English before the immigration officer when he could do so showed that he obstructed the process that did not stand to his credit [60].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me and confirmed that he was free to put his case before the immigration officer and the Adjudicator of the Board.

15.I put the Board’s findings to him. He argued that he disagreed with the Adjudicator that he came to Hong Kong for economic reason.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 14^th day of July 2020

	(Mike Mak)
	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 granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/7/2020 Drammeh Muhammed 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 14/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7650/17/7/31/GA53 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 639/17 (formerly RBCZ3001923/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)