M Bara Abaidi Ibrahim v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 61/2018

[2019] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 61 of 2018

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 the Applicant being present / 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 39-year-old national of the West African country Niger who last arrived in Hong Kong on 4 July 2008 with permission to stay as a visitor up to 6 July 2008 but he overstayed until 12 September 2008 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Niger he would be harmed or killed by members of rival party of the politician Mamadou Tandja (“MT Party”) for allegedly burnt down the properties of one of their members.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Niamey City, Niger.  After leaving school he worked in a metal workshop, and in 1999 joined the party of a politician named Hama Amadou (“HA Party”) and was responsible for organizing the party’s meetings.

3.In 2007 allegations of criminal activities were made by the MT Party against Hama Amadou which had led to conflicts and disputes between the two parties, and when the car and house of a senior member of the MT Party were burnt down, their members suspected that the applicant and several of his fellow members of the HM Party were involved and made a report to the police against them.

4.While the police were conducting their investigation, the applicant heard that some members of the MT Party planned to kill him and his fellow members in revenge, he therefore fled to Togo in mid-2008, but when he heard that some of their members had come looking for him in Togo, he departed in July 2008 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.Whilst being released on recognizance pending determination of his claim, the applicant was arrested by police on 28 March 2011 for undertaking employment without permission, for which he was subsequently convicted and sentenced to three months’ imprisonment.     

6.By a Notice of Decision dated 18 May 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those members of the MT Party to the applicant upon his return to Niger as low due to the absence of any past ill-treatment from them and that the applicant had never been directly threatened by them, that there is no reliable evidence that he was being pursued by them or by the police, that in any event that after all these years it is unlikely that the MT Party would still have any adverse interest in him, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Niger with a large population of 18 million people spread across a vast territory of more than 1.267 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Niger away from his home district in large cities such as Zinder where it would be difficult if not impossible for those members of the MT Party to locate him.

8.On 29 May 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 October 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the applicant’s evidence and account of his involvement in the HA Party and the burning incident of the properties of a senior member of the MT Party, but did not accept that the applicant was involved in that incident or that he was being pursued by either the police or the MT Party, that he had instead made use of the burning incident to fabricate his claim for non-refoulement protection, that in any event MT had since been ousted in a military coup in 2010 and that it is not accepted that his party if still exists would still have any interest in the applicant after all these years, and concluded that his claim fails on all applicable grounds and that he is not entitled to non-refoulement protection in Hong Kong.

10.On 11 January 2018 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 put forward any grounds for his intended challenge, but in his letter dated 15 November 2017 in support of his application for legal aid to challenge the Board’s decision and which he subsequently copied to the Court, he stated as follows:

“ I am against the decision made by the Torture Claims Appeal Board on 25 October 2017 rejecting my non-refoulement claim.

The Adjudicator has made a mistake in deciding that I was not at risk while information on my country show clearly that members of my party are arbitrarily arrested and tortured.  The interpreter I was provided during the interview was also not interpreting everything that I said leading to confusion and misunderstanding and I was then rejected on credibility grounds.”

11.The applicant however did not provide any particulars or specifics or elaboration as to how the adjudicator had erred in failing to rely on the COI as to the current situations in Niger in her assessment of the level of risk of harm to him upon his return to Niger, as clearly the COI referred to by both the Director and the Board support the adjudicator’s assessment of the improved situations in Niger including administration of justice and protection of human rights of its citizens since the power base has altered significantly since the applicant’s departure and with the new administration now in place under its current president, and that she was entitled to find on the basis of the evidence and materials available before the Board that the applicant has no well-founded fear of risk of any harm upon his return to Niger, and hence he is not entitled to non-refoulement protection in Hong Kong.

12.As to his complaint about his claim not been properly interpreted by the interpreter leading to confusion and misunderstanding of his case, again the applicant did not provide any particulars or elaboration as to what part of his claim had been misinterpreted before the Board.  Given the relatively straightforward nature of his claim, I do not find any confusion or misunderstanding of his case in either decision of the Director or the Board, and I do not believe that this ground is reasonably arguable for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

14.In the present case, having considered 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.

15.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 17^th day of June 2019.

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