Ndiaye Diaffe v. Torture Claims Appeal Board

HCAL 604/2019

[2022] HKCFI 2368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 604 of 2019

BETWEEN

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 32-year-old national of Senegal who arrived in Hong Kong on 2 August 2016 as a visitor with permission to remain up to 16 August 2016 when he did not depart and instead overstayed, and on 17 August 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Senegal he would be harmed or killed by members of his family in particularly his uncle for failing to repay his debts. He was subsequently released on recognizance pending determination of his claim.

2.The Applicant was born and raised in the Diourbel region of Senegal. After leaving school he married his wife and ran his own food business in his home district.

3.In 2014 he borrowed loans from his siblings and other members of his family including his uncle for expending his business, and for which he was told that he could repay when his business was successful.

4.However, his business did not turn out successful, and by 2016 the members of his family in particularly his uncle started to press him for repayments of his loans, and when he was unable to do so, his uncle then made death threats against him, and so the Applicant fled to Dakar to take shelter in a friend’s place during which he was advised that he should leave the country to seek protection in Hong Kong, and so on 1 August 2016 he departed Senegal, arriving in Hong Kong on 2 August 2016 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 20 December 2017 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”).

6.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 family members and uncle upon his return to Senegal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of any of them to seriously harm or kill the Applicant other than to put pressure on him to repay his loans, that in any event these were private family monetary disputes between the Applicant and other members of his family or his uncle without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Senegal, and that reliable and objective Country of Origin Information (“COI”) show that 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 away from his home district in large cities such as Dakar where he had stayed before without incidents and where it would be difficult if not impossible for his family members or his uncle to locate him.

7.On 22 December 2017 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 7 December 2018 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 15 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s evidence as to his monetary disputes with his family members and his uncle but found no evidence of any real intention of any of them to seriously harm or kill him other than to put pressure on him to repay his debts, and that in any event his problems with them were private monetary disputes within the family without any official involvement that state/police protection would be available to the Applicant if needed upon his return to Senegal that his claim for non-refoulement protection failed on all applicable grounds.

9.On 4 March 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth 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.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly 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 Senegal, 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 3^rd day of August 2022

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