Case Detail

HCAL 1098/2017

[2019] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1098 OF 2017

___________________

BETWEEN
	Bah Mamadou Habib	Applicant
and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
and
	Director of Immigration	Putative Interested Party

___________________

Before:

Hon Campbell Moffat J in Chambers

Date of Hearing:	28 February 2019
Date of Decision:	28 February 2019

___________________

D E C I S I O N

___________________

Introduction

1. This is an application dated 11 October 2018 for appeal from my decision of 14 September 2018 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order.

Procedural background

2. The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong legally on 7 August 2014 and thereafter overstayed. He submitted a non-refoulement (“NRF”) claim on 16 December 2015 and was interviewed by the Director of Immigration (“the Director”) on 3 February 2016. The Director dismissed his claim under all heads, by Notices of Decision on 8 April 2016 and 18 May 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Corrina Tai, heard him on 6 September 2017. The adjudicator refused his appeal on 20 October 2017.

3. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 14 September 2018. He had 14 days from that date to appeal that decision which would have expired on 28 September 2018. By way of summons dated 11 October 2018, he seeks leave to appeal out of time.

4. An applicant does not require leave to appeal against a CFI Judge's refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.

5. In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired. Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay. The applicant has not filed an affirmation in support of his summons. He appeared in person before this court and maintained that he did receive the order on time but did not look for it until reminded to do so by the Immigration Department, at which point he collected it and sought advice from a friend before filing his appeal. The ambit of the judicial review process was explained to him as was the ambit of any appeal from the order of this court dated 14 September 2018. The applicant was given an opportunity to indicate grounds of review of the TCAB and in respect of the order of this court and could not do so.

Conclusion

6. The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. The explanation he has offered to this court, as to why he did not receive the order in good time is not acceptable.

7. In any event, I have considered his underlying application. It has no merit as explained at some length in the initial refusal of leave. The were no grounds of review. There are none now. There was no complaint before the court as to the decision to refuse leave. There is none now. The applicant merely wishes the Court of Appeal to consider his situation afresh. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

8. The applicant’s summons dated 11 October 2018 be dismissed.

	(A P Campbell Moffat)
	Judge of the Court of First Instance High Court

The applicant appeared in person.

HCAL 1098/2017

[2018] HKCFI 1752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1098 of 2017

BETWEEN

	Bah Mamadou Habib	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 legally on 7 August 2014 from Malaysia and surrendered to the Immigration Department on 27 October 2014. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 24 November 2014. His NRF claim form was submitted on 16 December 2015.

2. The Applicant attended a screening interview on 3 February 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 8 April 2016 and by Notice of Further Decision (re BOR 2) on 18 May 2017. The Adjudicator of the TCAB, Ms Corrina Tai, heard him on 6 September 2017. She considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 20 October 2017.

3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4. The Applicant is a Guinean national. He was born in Conakry, Guinea, on 15 March 1996 and initially raised in Faranah but later in Rotama, when he moved to live with his paternal uncle. The Applicant maintains he was physically and mentally abused by his uncle’s family. As a child he was made to carry out household chores and was slapped, whipped and deprived of food and water by his aunt. The injuries he received as a result were minor and were not reported to the police despite his teachers being aware of them. In 2014, at the age of 18, he was accused by his aunt of stealing some gold and was detained in a room for three days with only water. Upon release, she threatened to kill him and, as a result, the Applicant fled to a friend’s house. No complaint was filed by him to the police but he believes she made a complaint of theft. The Applicant’s friend arranged and paid for the Applicant to travel to Malaysia. Not wishing to overstay in Malaysia, the Applicant thereafter came to Hong Kong lawfully on 7 August 2014 but overstayed in Hong Kong until he surrendered to the Immigration Department on 27 October 2014.

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 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 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 riskor real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

7. The Director analysed the Applicant’s claim on all applicable grounds. He correctly set out the law, key legal principles and made reference to relevant materials. The Applicant was given every opportunity to state his case and to supplement the evidence before the Director. In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner. In so far as the Further Decision is concerned, the Applicant was notified of his right to be considered under BOR 2 and was invited to make submissions thereon. He failed to do so.

Decision of the Adjudicator

8. The Applicant failed to attend the first hearing set down for his appeal stating that he was unable to attend due to a mental and emotional breakdown. A further hearing was therefore arranged. No further documentation was submitted by him at this hearing but he answered questions which supplemented the evidence within the appeal bundle. The Adjudicator analysed the Applicant’s claim on all applicable grounds. She had arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof. It is clear that the Adjudicator found the Applicant to be less than credible and she went to considerable lengths to explain how and why that was the case. She found the Applicant’s complaints to be of a wholly private nature and confirmed that he had never sought assistance from the authorities. There had been no complaint to them or against them. He had failed to establish a well-founded fear of persecution, risk of torture or loss of life should he be refouled to Guinea, where he could, in any event be relocated.

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 Decisions of the Director of Immigration and 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 to say that the Applicant simply alleged there had been impropriety, Wednesbury unreasonableness, bias and prejudice, without more. He has not complained of any actual procedural irregularity, unfairness or unreasonableness and provided no examples of his complaint but 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 proper grounds of review, I have considered the papers 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 Director and 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 their determinations, which were open to them on the facts and 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 14^th day of September 2018.

(Ms Queenie 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

Notesfor the Applicant:

If leave has been granted, the Applicant or his 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 14/9/2018

Bah Mamadou Habib

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 14/9/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3488/16/4/96/GIN17

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001674/17 (formerly RBCZ 13369/15)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

BAH MAMADOU HABIB v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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	consideration of the documents only; or
	consideration of the documents and the Applicant being present/absent in open court;