Sesay Hassana v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 543/2018

[2019] HKCFI 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 543 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 oral submissions by the Applicant 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 31-year-old national of Guinea where he was born, and of Nigeria where he had lived since the age of three, who arrived in Hong Kong on 15 June 2010 with permission to remain as a visitor up to 29 June 2010 when he did not depart and instead overstayed until 2 August 2010 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 Guinea or Nigeria he would be harmed or killed by the same people who had murdered his father for his land.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born in Macenta, Guinea to a Guinean father and a Nigerian mother.  His father owned a dozen plots of land in Guinea which were coveted by the people around him, and in 1990 when he was three years old, his father was murdered by those people for his land.

3.As the applicant was the eldest son and stood to inherit his father’s estate when he grew older, but one day shortly after his father’s death, when he was out with his uncle in the street, they were attacked by the same people who murdered his father during which his uncle was also killed while he was seriously injured.

4.After he was discharged from hospital, as his mother was concerned for his safety, she therefore brought him and his siblings to her maiden home in Nigeria in 1990 where he was raised, and was told by his mother that she had once in 2007 received a telephone call from some man who threatened to kill her whom she suspected were the same people who had murdered his father and were looking to murder her and her children as well.

5.After leaving school the applicant was however unable to find any stable job in his home town in Nigeria and wanted to look for jobs in other parts of Nigeria, but as he was concerned that those people from Guinea were still looking for him in Nigeria, he decided to leave Nigeria to seek protection in Hong Kong, and so in 2010 he departed for China, and later came to Hong Kong where he subsequently overstayed and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 10 November 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.By a Notice of Decision dated 7 December 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 found no substantial grounds for believing that his perceived fear is real and foreseeable in view of the absence of any past ill-treatment from his perceived enemies since 1990 when he left Guinea for Nigeria, that there is no objective evidence that his perceived enemies were still looking for him after all these years, that in the absence of any 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 Nigeria with a large population of 190 million people spread across a vast territory of more than 923,000 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 Nigeria away from his home district in large cities such as Lagos or Kano where it would be difficult if not impossible for his perceived enemies to locate him.

8.The applicant then 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 12 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 21 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the core of the applicant’s case all based on what his mother had told him which were all hearsay and unsupported by any independent or reliable evidence, not even from the applicant himself save for his own suspicion and speculation, and as he had been away from Guinea since the age of three, there is nothing to indicate that his perceived enemies from Guinea would be able to identify or recognize him, and in any event as he would not lay claim to his father’s land, the alleged reason for harm from his perceived enemies is no longer extant, and concluded that there is no real risk of any harm to him on refoulement to Guinea or Nigeria and therefore his claim failed on all applicable grounds.   

10.On 3 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings which the applicant may face if deported to Guinea; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

11.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce evidence for his claim or appeal.  None of these were elaborated or presented with any particulars or specifics by the applicant, and even in his present application now before me, he did not seek to produce any further evidence for his claim.  As such I do not find any basis or merits in any of these complaints of his, nor do I see any of them that can reasonably arguable for his intended challenge.

12.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.

13.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.

14.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 19^th day of July 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