Bah Mohamed v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 851/2018

[2020] HKCFI 2052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 851 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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant is the holder of a Guinean passport.  He arrived in Hong Kong on 27 July 2012 on the strength of his Guinean passport and was permitted to remain until 10 August 2012 as a visitor.  He overstayed since then.  On 6 July 2015, he was arrested by the police and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [ 47-76] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his Muslim relatives in Guinea should he return there and not convert to Islam.  Further, if he returns to Uganda he would be killed by a man named Zakaria who he owes money to as a result of a business dispute over undelivered motorbike spare parts worth about US$70,000.  The applicant, born in Guinea, was brought up and educated in Nigeria.  His father was a Guinean and his mother was a Nigerian.  The applicant is a Christian.  In about 2003, when he returned to Guinea to obtain a passport, his relatives threatened him.  In about 2005, he moved to live in Uganda to restart his life.  In 2012, Zakaria threatened to kill the applicant if the applicant could not return the money or provide the goods to him.

The Director’s decision

4.By a notice of decision dated 24 April 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He attended a hearing before the Board on 14 March 2018.

The Board’s decision

5.By a decision dated 26 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

6.The Board accepted in its decision that the applicant was threatened by his Muslim relatives he knew little of, and also by Zakaria.  And he never informed the police or any other authority in Guinea or Uganda concerning the threats [142].  However, it found that the applicant did not suffer ill treatment to the necessary level of severity required and both threats were isolated incidents [145].  It would be very unlikely that he would be subjected to any ill treatment if he were to return to Guinea as the threats by his Muslim relatives were made in 2003, his dispute with Zakaria was only a private dispute [165], and the continuous threats by Zakaria are based on hearsay from his wife [168].  In any event, it found that state protection in Guinea, Uganda or Nigeria would be available and that relocation is a viable option.  It concluded that the applicant would not be at any real risk of harm or ill-treatment, if refouled.

7.Having considered all the circumstances relied on by the applicant, the Board found that he was not at real risk of any of the proscribed types of harm.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 16 May 2018 for leave to apply for judicial review of the decision of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.

9.By a letter dated 19 May 2020, the court invited the applicant to submit information including any submissions that he would like to make.  Afterwards, he submitted the hearing bundle before the Board to the court without any submission.

Discussion

10.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

11.As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

12.In the present case, the Board in fact refused the applicant’s appeal/ petition on the ground that, based on the facts he claimed, the applicant would not be at any real risk of harm or ill-treatment.  There were no substantial grounds for believing that he would be subjected to ill treatment or harm.  It also found that state protection was available and internal relocation was reasonable option.  As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.

13.In the Form 86 and affirmation in support, no specific grounds for judicial review are stated.  The applicant only stated that his Muslim relatives would kill him because he changed from a Muslim to Christian.  He failed to pinpoint to any unfairness or unreasonableness of the Board.

14.Given the nature and circumstances of the threats which took place very long time ago and the fact that the applicant did not make reports to the authorities, I cannot see any reasonable arguable basis to challenge the findings of the Board.  It is also to be noted that the applicant only lodged his non-refoulement protection long after he had overstayed in Hong Kong, which should be considered as conduct inconsistent with someone in genuine fear for his life and safety.

15.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

16.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I accordingly refuse to grant him leave to apply for judicial review.

Dated 24 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