Kada Mustapha v. Torture Claims Appeal Board

HCAL 983/2018

[2020] HKCFI 1974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 983 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 57-year-old national of Algeria who last arrived in Hong Kong on 12 April 2017 with permission to remain as a visitor up to 26 April 2017 when he did not depart and instead overstayed, and on 2 June 2017 he was arrested by police for theft for which he was subsequently convicted and sentenced to prison for 8 months, and upon his discharge he was referred to the Immigration Department when he raised a non-refoulement claim on the basis that if he returned to Algeria he would be harmed or killed by his creditor for failing to repay his loan. 

2.The Applicant was born and raised in Algeria, and after leaving school, he got married and raised a family of three children, and in early 2016 started to run his own food products importing business by borrowing a loan of US$75,000 from a local wealthy business man to be repaid within 4 months in the total sum of US$100,000 inclusive of interest.

3.However, in May 2016 his business was shut down by the government for health reason, and as a result he was unable to repay his loan, and his creditor started to make threats against him every day on the phone that he would be killed if he failed to repay his loan.

4.One day in June 2016 while he was crossing the street, he was knocked down by a vehicle and was taken to the hospital for an operation on his injured right leg.  Upon his discharge from the hospital, he reported the matter to the police as he suspected that it was his creditor who was trying to kill him in the incident, but the police did not do anything due to lack of evidence.

5.As his creditor continued to make threats against him, the Applicant felt it was no longer safe to remain in Algeria, and so on 30 March 2017 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 17 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 30 November 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 Ordinance, Cap 383 (“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 his creditor upon his return to Algeria as low due to the low intensity and frequency of past ill-treatment from him, that there was no evidence that his creditor was trying to kill him in that road incident other than his own speculation, that it was a private monetary dispute between them without 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 show that reasonable internal relocation alternatives are available in Algeria with a large population of 40 million people spread across a vast territory of more than 2.3 million 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 Algeria away from his home district in large cities such as Tebessa or Oran where it would be difficult if not impossible for his creditor to locate him.

8.On 7 December 2017 the Applicant 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 20 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no reliable evidence of any real intention on the part of his creditor to seriously harm or kill the Applicant other than to put pressure on him to repay his loan, that it was a private monetary dispute to which none of the proscribed risks apply, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Algeria that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 31 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward just one broad ground that the decision was unfair as he was then being detained at the Castle Peak Bay Immigration Centre and was therefore prevented from submitting important documents in support of his claim but without providing any details or particulars about any such documents or any elaboration as to how they would have assisted or supported his claim, and that even up to now in his present application before me that no such documents have been submitted by the Applicant or any attempt by him to do so.  Nor did he request any oral hearing for his application.

11.However, before his application could be dealt with by the court, the Applicant on 18 December 2019 wrote to request to withdraw his application as his health condition was not well and he wanted to go home, and so on 31 December 2019 this court allowed him to withdraw his application.

12.On 7 July 2020 the Applicant wrote again to request to re-open his application but without providing any explanation or making any further representation.  Given that the merits of his application has never been determined when he requested for its withdrawal and that it has not been dismissed, I propose to allow him to proceed with his application.

13.As noted above, the Applicant did not put forward any proper or valid ground for seeking relief in his Form or supporting affirmation, nor has he done so when he now requests to proceed with his application.  As such 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, I do not find any reasonably arguable basis for his intended challenge.

14.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.

15.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Algeria, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.     

16.In the premises and 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.

17.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 August 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