Diallo Thierno Amadou v. Torture Claims Appeal Board

HCAL 486/2017

[2018] HKCFI 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 486 of 2017

BETWEEN

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 (counsel for) the Applicant being absent / in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 36-year-old man with nationality of possibly both Guinea and Nigeria who entered Hong Kong on 27 September 2012 on his Guinean passport and was permitted to remain as a visitor until 11 October 2012 when he did not depart and instead overstayed until he was arrested by police on 3 August 2014.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim with the Department on 5 August 2014 on the basis that if he returned to Nigeria or Guinea he would be harmed or killed by his father’s creditors in Guinea or by members of a secret religious sect in Nigeria.  He has since been released on recognizance pending determination of his claim.  

2.The applicant was born in Conakry, Guinea to a Nigerian father and a Guinean mother, and moved to Nigeria at the age of 5 to reside with his paternal aunt while his parents remained in Guinea.  After leaving school in 2002 he assisted in his father’s trading business in clothing and telephones in Nigeria, and in 2009 he established his own business in Jos City, Nigeria which he later also expanded to Guinea and for which he would travel each week between Nigeria and Guinea to tend to his business in both places.  While he and his family were all dedicated Christians, his paternal grandfather was the leader of a secret religious group of Muslims known as the Oracle before he passed away in May 2012.

3.In about June 2012 he agreed to allowed his office and business to be used to guarantee a loan obtained by his father for US$1.2 million from his two business partners who are wealthy and influential in both Guinea and Nigeria with connections to their governments.  Later in September 2012 he travelled first to Mainland China and then to Hong Kong for his business, and while he was in Hong Kong he received a telephone call from his father on 12 October 2012 that his father has fled to Jos City in Nigeria after members of the Oracle have threatened to kill him and his family for refusing to take over grandfather’s duties and position in the Oracle, and warned the applicant to watch out for his own safety.  As a result the applicant decided not to return to Nigeria or Guinea and instead remained in Hong Kong.

4.In 2014 the applicant was then informed by his business manager that after his father fled to Jos City and failed to repay his loan, his business partners have seized the applicant’s office and business but as it was not enough to cover the loan, they have threatened to kill the applicant if he failed to repay the loan and its interests for his father.  Thereafter the applicant was unable to contact his manager or any members of his family again, and as he believes that he would be killed by members of the Oracle or his father’s creditors, he therefore raised his non-refoulement claim with the Immigration Department.

5.By a Notice of Decision dated 11 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and 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”).

6.In his decision the Director found no reliable evidence of any direct threats from either the members of the Oracle or from his father’s creditors as they were all based on hearsay and speculations, but even accepting that they were true that in the absence of any involvement of either the state or police of Guinea or Nigeria state protection would be available to the applicant upon his return to either country, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives would be available in both Guinea and Nigeria, such as Conakry in the former and Lagos in the latter, or Jos City in Nigeria where his father has taken shelter, where it would not be unduly harsh for the applicant to live and work free from any threats from either the Oracle or his father’s creditors.  

7.By a Notice of Further decision dated 27 February 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 14 July 2016, and for which he attended an oral hearing on 13 March 2017 before the Board during which he declined to testify but he did answer some questions put to him by the Adjudicator for the Board.  On 6 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted that the applicant’s accounts about threats from his father’s creditors and the Oracle could not be ruled out as implausible or incredible, but found that he has failed to make out his case in any of the applicable grounds for the detailed reasons set out in paragraph 22 of the decision including the fact that the applicant has never been subjected to any verbal threats let alone physical violence at the hands of or behest of either the Oracle or his father’s creditors as his account that threats were made against him rest entirely on hearsay evidence from his father and his manager, that since his last contact with his father in October 2012 there is no evidence that Oracle followed up their threats by causing any harm to his father or any of his family members, that his opinion that the Oracle possess spiritual or supernatural powers to track him down is far-fetched and fanciful, that state and police protection would be available to him upon his return to either Guinea or Nigeria, and that reliable and objective COI show that reasonable internal relocation alternatives are available that the applicant can without due hardship relocate within either country free of any threats from the Oracle or his father’s creditors. 

10.On 4 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he set out any grounds for his intended challenge other than merely repeating his claim as before that his life would be in danger if he is refouled to Guinea or Nigeria.  Clearly high standards of fairness do not entitle the applicant to simply repeat his claim and then sit back in his leave application for judicial review for the Court to look to see if any ground exists for his intended challenge: see CH v Director of Immigration [2011] 3 HKLRD 101.    

11.Nevertheless, having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises I do not see any ground which the applicant could have relied on for his intended challenge, and accordingly I refuse his leave application.

Dated the 4^th day of May 2018.

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