Ly Rahamane v. Torture Claims Appeal Board

HCAL 103/2019

[2021] HKCFI 3745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 103 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent 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 41-year-old national of Guinea who last arrived in Hong Kong on 28 November 2018 as a visitor with permission to remain up to 12 December 2018 when he did not depart and instead overstayed, and on 15 December 2018 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Guinea he would be harmed or killed by supporters of the political party Rally of the Guinean People (“RPG”) as he supported their rival Union of Democratic Forces of Guinea (“UFDG”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in District Matam, Conakry, Guinea where his parents passed away when he was small and was raised by his uncle in District Banbeto, Conakry.  After leaving school he became a UFDG supporter by regularly attending their local meetings and rallies.

3.In about 2010, the RPG came into power in Guinea but due to the poor performance of the Guinean government, UFDG supporters regularly held massive protests against the government which the Applicant had attended but which frequently ran into violent confrontations with the RPG supporters as well as the police and security forces, so much so that the Applicant decided to depart the country on 5 August 2012 and travelled to various countries in Asia including Malaysia, Singapore, China, Macau and Hong Kong where he last arrived on 28 November 2015 as a visitor, but when he heard from a friend in Guinea that the RPG people were looking for him, he was afraid to return to Guinea and therefore overstayed in Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 30 April 2018 the Director of Immigration (“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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his perceived fear is real and foreseeable upon his return to Guinea due to absence of any past ill-treatment from the RPG people, that there is no evidence that the Applicant had ever been targeted by the RPG people or the Guinean authorities, 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 Guinea with a large population of 12 million people spread across a vast territory of more than 245,000 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 Guinea away from his home district in large cities such as Conakry or Labe where it would be difficult if not impossible for those RPG people to locate him.

6.On 11 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 July 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 October 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found that even on the Applicant’s own case that he left Guinea in August 2012 owing to the bad situation in the country without any evidence of any threats being directed against him other than hearsay from a friend when he had already been out of the country for more than 3 years, and given that he was not anybody with any official post in UFDG other than just an ordinary supporter that there is no reason for the RPG people or the Guinea authorities to have any interest in him that it concluded that the Applicant would not face any genuine or substantial risk of harm from anyone upon his return to Guinea that his claim for non-refoulement protection failed on all applicable grounds.

8.On 10 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim of fear of harm from those RPG people in Guinea as before but without providing any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or irrationality 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.

9.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.

10.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 35 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

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

12.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.

13.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 14^th day of December 2021.

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