Case Document

100%Judiciary

HCAL 2419/2018

[2020] HKCFI 1660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2419 of 2018

BETWEEN

	Kourouma Abdoulaye	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 documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 20 November 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Guinean national. He came to Hong Kong on 13 October 2011 as a visitor and was allowed to stay until 27 October 2011. He overstayed and was arrested by police 23 August 2014. He was referred to the Immigration Department on 24 August 2014. He lodged a non-refoulement claim on 26 August 2014.

5.He claimed that if refouled, he would be harmed or even killed by his business partners and their associates because all of them are Muslims and he is a Christian.

6.He set up his trading business in Guinea. In 2007, he had three partners: Sambo, Useni and Usman joined to run the business. He did not know their full name. They were Muslims. They contributed capital to him. They persuaded him to convert to Muslim. He refused. One day in August or September 2011, whilst he was in Nigeria on business, he was told by his mother that his three partners went to his home. They took US$ 30,000 from his home and they killed his father for the reason that his father supported him not to convert to Muslim. He was afraid that he might be harmed or killed if he went back to Guinea. He went to China and subsequently to Hong Kong.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 28 September 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [11]; that state protection was available to him [15] and internal relocation was an option open to him [19].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 27 July 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that the applicant was not a credible witness [74]. See the reasons in paragraphs 75-82. It did not accept that he had those three partners and that they had killed his father [85]. It rejected all the risks claimed.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he did not say what error the Board had committed in coming to its decision. He simply repeated his case that he might be tortured by his partners and his father was killed.

DISCUSSION

14.The applicant appeared before me. He confirmed that he was at liberty to put his case before the Immigration officer and the Adjudicator of the Board. The Director’s Decision was explained to him by his duty lawyer. His friend had explained the Board’s Decision to him.

15.I put the Board’s findings to him and asked him if he had any comments on them. He said that he did not agree with the Board.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 22^nd day of July 2020

	(Mike 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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s 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 22/7/2020 Kourouma Abdoulaye 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 22/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8778/17/10/108/GIN23 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2533/17 (formerly RBCZ 3001177/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)