Diouf Ndongo v. The Director of Immigration and Another

HCAL 1377/2018

[2020] HKCFI 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1377 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 Senegal who arrived in Hong Kong on 23 November 2016 with permission to remain as a visitor up to 7 December 2016 when he did not depart but surrendered to the Immigration Department, and subsequently raised a non-refoulement claim on the basis that if he returned to Senegal, he would be harmed or killed by the Senegalese army or authorities for losing his weapon during a combat mission.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Dial Pecheur, Diakhao, Senegal.  After leaving school he followed his father’s footstep and joined the army in 2010.

3.In 2015 he was stationed in the forest of the Casamance Region in the southwestern part of Senegal where there were separatist rebel activities, and one day in August 2015 while he was on guard at his army camp, he was attacked by a rebel group and was shot in his left leg, and in the confusion of being rescued by his fellow soldiers and rushed to the military hospital, he lost his rifle for which he was required by his Lieutenant to provide a full report as soon as possible.

4.Fearing that he would be severely punished by the army for losing his rifle and may even be court martialed for it, the Applicant upon his discharge from the hospital fled to neighbouring Gambia, but later returned to Senegal to hide in his uncle’s place in Village Dial Pecheur for 9 months without incidents, but as he was still fearful for his life, he departed Senegal again on 22 November 2016 for Hong Kong, where he subsequently raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form on 21 November 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 9 August 2017 for undertaking unauthorized employment, and was subsequently convicted and sentenced to 15 months in prison.      

6.By a Notice of Decision dated 10 January 2018 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the army upon his return to Senegal as low due to the absence of any past ill-treatment from them, that there is no evidence that the Senegal army or authorities had taken any action against the Applicant other than a request for him to submit his report, that it is unlikely that he would be penalized or punished for losing his rifle in the circumstances as alleged, let alone punished severely except for his own groundless speculation, that he was able to return from Gambia to Senegal without problem and stayed in Senegal for 9 months without incidents clearly indicative that he was not being pursued by the army or authorities, and that in any event reliable and objective Country of Origin Information (“COI”) show that there is in place a system in Senegal to provide protection of legal and human rights for its citizens that state protection, due process and fair trial would be available to the Applicant if indeed he is to be pursued by the army or the authorities, as well as reasonable internal relocation alternatives are available in Senegal with a large population of 14 million people spread across a vast territory of more than 196,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Senegal to re-establish himself without any fear of risk of harm from the army that his non-refoulement claim failed on all applicable grounds.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 15 June 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 5 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence vague and lacking in details as to his claim and was also evasive to many of the questions put to him by the Adjudicator despite being given every opportunity to explain or clarify and to provide relevant details rather than merely repeating just short assertions which seriously undermined his credibility that he was not considered as a reliable witness or that his version of story was believable, and that even on his own case that he was neither a refugee nor a person subject to persecution, and concluded that he did not have any well-founded fear of harm or that he would be at any risk of harm upon his return to Senegal that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 13 July 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 put forward the following grounds for his intended challenge:

(1)     that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as unfair and unreasonable;

(2)     that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(3)     that the Director failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)     that the Director failed to consider or give sufficient weight to those relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect;

(5)     that the Director relied on relevant COI that suited his pre-conceived conclusion which was a clear case of unfair attitude which should render his decision void;

(6)     that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as reported by various human rights organization which stated testament to the Applicant’s assertions;

(7)     that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered unreasonable in the scope of public law;

(8)     that the Adjudicator failed to make sufficient enquiry before finalizing the determination; and

(9)     that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to 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 decisions, or in what way was state acquiescence relevant to his case, or how did the Director fail to rely on relevant COI in his determination or to apply high standard of fairness, or in what way did the Adjudicator fail to make sufficient enquiry or to give the Applicant sufficient opportunity to produce his evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 42 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient elaboration or particularity, I do not find any reasonably arguable basis to challenge the finding of the Board.       

14.Having proceeded to further 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.

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 9^th day of June 2020. 

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