Kruk Oleksandr v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 1457/2019

[2022] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1457 of 2019

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 1 March 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 November 2018 (the “Notice”).  Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director.

2.The Applicant is currently detained in Tai Tam Gap Correctional Institute under the Immigration Ordinance (Cap 115) pending his removal from Hong Kong.  His removal arrangements have been temporarily stayed because of the present proceedings.

3.The Applicant is a Ukrainian national, now aged 24.   He had entered Hong Kong as a visitor 33 times since 6 February 2016, primarily to facilitate him to renew his visa to travel in Mainland China.  He last entered Hong Kong on 7 May 2017 as a visitor and was permitted to remain until 21 May 2017.  He overstayed and surrendered to the authorities on 23 May 2017. On 17 August 2017, he raised a non-refoulement claim.  He was released on recognizance.  He failed to report to the Immigration Department on 26 September 2017 and was arrested by the police on 1 March 2018.  He was convicted of theft and sentenced to seven months of imprisonment on 16 July 2018.

4.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By the Notice dated 22 November 2018, the Director rejected his claims under all four applicable grounds.  He appealed the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision.  On 29 May 2019, he applied for leave to apply for judicial review of that Decision.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that, if refouled, he would be harmed or killed by supporters of the former Ukrainian President (Mr Viktor Yanukovych) (the “Former President”) because he had helped to collect evidence against the Former President for ordering the police to use lethal force against protestors during the Maidan Square protest in Kyiv in 2013 and releasing prisoners to fake as policemen to shoot them.

6.The Applicant was born in Dnipro, Ukraine.  He is single.  He received about 12 years of education, including two years in a dance college.  In around 2012, he joined a soccer fans club named “Ultrasdnepr” which supported the domestic soccer team named Dnepr.  On 22 November 2013, he along with other members of Ultrasdnepr joined a two-month long protest in Euromaidan Square in Kyiv (“Maiden Square”) to protest against the Former President’s decision to stop negotiation for Ukraine to join the European Union.

7.On or about the second day of the protest, the Former President ordered dispersal of the protestors with force.  When the police refused to use lethal force, the Former President ordered some prisoners to dress up as policemen and shoot the protestors.  The Applicant along with some protestors caught some of those prisoners, photographed them, made them disclose the identities of those who ordered them to shoot the protestors and passed the information to the journalists.   He stayed in Maiden Square for about two months until the Former President resigned.  He said he had fought in Maiden Square and was present at a shooting.  He claimed that his involvement in the protest was known to a lot of people, although he was not injured or arrested.

8.After the Former President had resigned and left for Russia, his supporters and the Ukrainian police targeted the protestors.   Since December 2015, while in Dnipro, he received about six calls from unknown callers.  They held him responsible for his actions in Maiden Square.  He filed two complaints at the Dnipro police station but the police refused to register his complaint or provide any assistance.

9.He fled to Zaporozhye and stayed there peacefully for about a month.  He then moved to another village named Vidvezhenec and stayed there peacefully for about two months.  He returned to Dnipro in about January 2016 but he did not stay with his family but instead stayed with another friend.

10.He tried to return to his home about a week later with a friend but they were attacked by three assailants armed with a light pole.  He suffered bruises all over his body and his friend’s finger was fractured.  The assailants told him that they knew he was involved in the protest at Maiden Square which caused unrest in the country and that he should leave the country or he would be killed.  The Applicant fled to Kyiv.  His friend arranged for him to join a dancing team to go for performance in Mainland China.  He performed in different cities in the Mainland.  He claimed that he did not tell the Immigration Department about his work in Mainland China as a dancer because his visa did not permit him to work.

11.He learnt from other members of Ultrasdnepr that the supporters of the Former President were still actively persecuting those who protested in Maiden Square.  He heard that some members of Ultrasdnepr had gone missing and some had received threats from the supporters of the Former President.  He did not believe internal relocation would be viable as the supporters of the Former President were influential in Ukraine.  He claimed to have received no assistance from the police when he reported the threats and he doubted if other government agencies in Ukraine would be willing to protect him upon his return.

The finding of the Board

12.The centrepiece of the Applicant’s case is that he was being targeted for harm by gangsters associated with the political party of the Former President because of his activities in the Maiden Square protest.  However, the Board found the Applicant incredible, his account inherently improbable and inconsistent with contemporaneous country of origin information (“COI”).

13.There is ample COI on reporting and investigating the Maiden Square protest from authoritative and credible sources such as the United Nations Human Rights Council, the Office of the High Commissioner for Human Rights, and the United States Department of State.  While action had been taken against the people responsible for the violence in Maiden Square and journalists, the Applicant’s claim that the protestors were targeted by supporters of the Former President was “completely unsupported” by the available COI.

14.The Applicant was a dance student who had just turned sixteen at the time of the Maiden Square protest.  He claimed that he had never been arrested or identified during the protest.   In the circumstances, the Board found his claim that he was targeted after some two years had passed and in a city some 500 km from Kyiv where the protest took place inherently improbable.  The Applicant could offer no coherent or credible explanation as to why and how he was targeted.

15.The Board found the Applicant’s evidence about his claimed involvement with Ultradnepr evasive and unconvincing.  Though claiming to have known about the politics of Ultrasdnepr and to have been involved in its activities, the Applicant appeared to have little knowledge of its activities.  The Board found it doubtful that as a dancer, the Applicant would associate himself with a club that was often involved in violence and would enjoy going to the football matches to fight the supporters of other football team as he claimed.

16.The Board found the Applicant’s claim of fear of harm at the hands of supporters of the Former President incredible.  It rejected his evidence.  The Board was therefore not satisfied that the Applicant had established there are substantial grounds which support the conclusion that he will face a real risk of ill-treatment as claimed at the hands of supporters of the Former President or anyone else, if he were to return to Ukraine.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board was not satisfied that the Applicant had proved, albeit to the low standard required, that he will be subject to any of the proscribed risks of harm upon his return to Ukraine.  It therefore dismissed his appeal and upheld the decision of the Director in his Notice.

Legal principles applicable to judicial review

17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

18.In his Form 86, the Applicant said he is not satisfied with the Decision of the Board and reiterated his case that his life would be in danger, if refouled back to Ukraine.  In his supporting affidavit, he repeated the gist of his case that he will be killed by supporters of the Former President because he had helped to collect evidence against the Former President for ordering the use of lethal force against protestors and instructing prisoners to shoot at them.  In effect, he is seeking to challenge the finding of fact of the Board under the guise of judicial review.  That is not permissible unless the Board’s finding is tainted by errors of law, procedural unfairness or irrationality.

19.In response to the Court’s invitation, the Applicant lodged his submission.  The essence of his submission is about the current situation in Ukraine as a result of her war with Russia and his requests for bail pending determination of his leave application. These are not relevant matters to be taken into consideration in determining his leave application.  “Bail” is not an appropriate term as it relates to payment or acknowledgement of a debt owed to court to secure an accused’s attendance in court for trial after he had been released.  The Applicant should be referring to recognizance in lieu of detention under section 36(1) of the Immigration Ordinance.

20.In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion and conclusion

21.At the hearing, the legal principles as outlined in paragraph 17 were explained to the Applicant. He was asked if he had any complaint about errors of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  He confirmed he had none but repeated his request to be released on recognizance. He submitted that his current detention is illegal because one is detained for having done something wrong but he has not done anything wrong.  He argued that he is entitled to freedom to decide what he wants to do or not to do, but he is now being deprived of his freedom.  He said his girlfriend, brothers and sisters are in Hong Kong.  He asked to be released from detention while waiting for the outcome of his leave application.

22.He was explained that freedom is not without limits.  As he has no right of abode in Hong Kong, he is subject to detention under the Immigration Ordinance.  He was also explained that whether to allow him to be released on recognizance in lieu of detention is a matter in the discretion for the Director of Immigration, which the court in a judicial review has no jurisdiction to interfere.  None of those matters is relevant to his application for leave to apply for judicial review of the Board’s Decision relating to his non-refoulement claim.  The best this Court could do is to expedite the processing of his leave application.

23.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

24.The Board found the Applicant incredible on the crucial issues of his role in the Maiden Square protest and the risk of harm upon his return to Ukraine; and rejected his evidence.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault. The Applicant’s leave application is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Hence, leave to apply for judicial review is refused.

Dated the 20^th day of September 2022.

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