Elyas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 421/2019[2022] HKCFI 683

Court

High Court CFI

Date14 Mar 2022

Judge—

Case Document

100%Judiciary

HCAL 421/2019

[2022] HKCFI 683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 421 OF 2019

BETWEEN
	Elyas	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;

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 on a visitor visa on 10 April 2016 and was permitted to remain until 10 May 2016. On 15 May 2016, he was arrested by the police for overstaying and was transferred to the Immigration Department the next day. The applicant submitted two non-refoulement (“NRF”) claims by way of written representation on 1 June 2016 and 21 June 2016. He was released upon recognisance on 19 July 2016. His NRF claim form was submitted on 30 April 2018 and dealt with under the USM[1].

2.The applicant attended a screening interview on 23 May 2018. The Director of Immigration (“the Director”) dismissed his claim on all grounds including that under BOR 2 by Notice of Decision (“the Decision”) on 28 May 2018. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Paul Stephen Fisher (“the Adjudicator”), heard his appeal on 14 November 2018. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 28 January 2019.

3.The applicant filed a notice of application on Form 86 seeking leave to apply for judicial review on 14 February 2019 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is an Indonesian national and Javanese. He was born on 3 April 1984 in Kendal, Jawa Tengah, Indonesia. He received 10 years of formal education and was employed as a driver. He has a wife and daughter in Indonesia. His claim arises from a car accident with a member of the NMP[2] in 2016. Instead of confronting the people in the other car, the applicant ran away and hid. Not surprisingly, his boss, the police and the owners of the other vehicle came to his home to look for him. They were claiming 150,000,000 Indonesian rupiah for the repairs. He also stated that the driver of the car died in the accident. As a result, his wife was the victim of several threats. He has since separated from her and decided to leave the country out of fear of reprisal.

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 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[3].

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. He had available to him the NRF claim, the notes of interview from the Immigration Department and his own notes on questioning. He gave the applicant an opportunity to make good his claim, which was particularly weak. His main complaint is that he owes money which he cannot pay. The Ajudicator ascertained the relevant facts, correctly set out the law and key legal principles including the burden and standard of proof and applied them to the facts as he found them to be.

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. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him.

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: Peter Po Fun Chan v Winnie Cheung & Anor (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, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. 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 his determination, which was open to him on the facts and eminently reasonable[4].

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 14th day of March 2022.

	(Trista 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/s 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 judgement 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 the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 14/03/2022 Elyas 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 14/03/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11897/18/6/76/I1353 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1504/18 (formerly RBCZ/12428/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)