Hassan Naser Abdirahman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 193/2022

[2022] HKCFI 2691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 193 of 2022

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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 12 April 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 5 May 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 February 2018 (the “Notice”). Though the Director is named as a proposed interested party, no relief is sought in respect of the Notice or any decision of the Director. 

2.The Applicant is a Somali national, now aged 32.   He entered Hong Kong on 8 May 2013 through the China Ferry Terminal Control Point and was refused permission to land.   He made a refugee claim on the same day.  On 4 March 2014, he raised a non-refoulement claim.

3.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By the Notice, the Director rejected his claims under all four applicable grounds.  He appealed to the Board.  His appeal was dismissed by the Board’s Decision dated 5 May 2020.  After almost two years, he applied for leave to apply for judicial review of that Decision.

4.The Decision was made on 5 May 2020.  It was not until 12 April 2022 that the Applicant sought judicial review of that Decision.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 12 April 2022, his application is more than 20 months out of time.  To obtain extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (v) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[5].

5.Merits is usually a very important factor.  It was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  For this reason alone, extension of time to apply will not be granted and his leave application may be dismissed.  Just for completeness and to save the unnecessary delay in investigating the other three factors, the Court proceeded to consider the issue of merits below.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.

7.The Applicant was born in Howlwadaag, Jamaame, Somalia.  He married a Hong Kong resident and they have a daughter.  He received education up to Class 8.  He helped in his uncle’s farm but was never paid by his uncle.  He was never formally employed.

8.He is a member of Ashraf Shariif Xassn ethnic clan (“Ashraf clan”), which is a minority tribe in his village.  The dominant tribe in his village was the Hawiye tribe.  He claimed that there is no system of law enforcement in his village.

9.In around December 2003 while he was thirteen years old, he overheard a conversation between his father and mother about his father’s dispute with a cow seller.  A few nights later, his father was taken away from his home by several armed men and killed a few nights thereafter.  He surmised that it was due to the dispute with the cow seller.  He did not know the identities of the armed men or their ethnicity but believed they were from the Hawiye tribe.

10.The Applicant’s mother sent him away to live with his maternal aunt in Maxaas.  He used a different name and posed as a member of his aunt’s family clan, the Sheekhaal clan, which is also a minority clan.  He stayed there for the next nine years during which time he had no contact with his family members.  Towards the end of 2012, he went back to Jamaame against the wishes of his aunt to look for his family members. He was told by a neighbour that his mother and siblings had fled from the village to avoid those who killed his father.

11.He returned to his aunt’s place about a week later.  He went to Jamaame again in around February 2013.  One day, his neighbour Maxamed (who offered him shelter) told him that somebody was looking for him and that he should leave because he would bring troubles to Maxamed.  He then returned to his aunt’s town.  For fear he would bring her troubles, his aunt and her husband arranged for him to leave the country.  On around 4 May 2013, he travelled to Mogadishu where he boarded a plane to China.  He arrived in Mainland China on 5 May 2013 and came to Hong Kong by ferry on 8 May 2013.

12.He learnt that his aunt had since moved to a refugee camp.  He has not established any contact with his own family members.  He is concerned that upon his return he would be harmed by those who killed his father and other tribes in Somalia which discriminate his tribe; and by the Al-Shabaab organization which targeted Somalian returning from overseas.

The finding of the Board

13.The Board accepted that the events asserted by the Applicant are true.  It considered internal relocation is the key issue in the appeal.  It extensively examined the country of origin information (“COI”) provided by the Director and the Applicant.  It took note of the Applicant’s wish to live his life under his true identity as a member of the Ashraf Shariif Xassn sub-clan.  It assessed the Applicant’s feared harm arising from (i) clan violence generally; (ii) his father’s dispute with the injured man which resulted in his father’s abduction and murder; (iii) his life under the assumed identity in his aunt’s home town; and (iv) general violence from Al Shabaab and the instability in Somalia. 

14.Under clan violence generally, the Board accepted that if the Applicant uses his true identity, he would face societal harassment and discrimination from members of the majority clans, including members of the Hawiye clan.  While accepting that the Applicant would suffer actual physical and mental harm as a result, the Board did not consider the harm so serious as would meet the high threshold of minimum level of severity to amount to persecution for the purpose of Persecution Risk and/or BOR 3 Risk.  As the harm did not involve any public official or person acting in an official capacity, it did not meet the requirements for the Torture Risk as defined in section 37U(1) of the Immigration Ordinance.  The Board also did not consider there is any real risk that the Applicant would be deprived of his life for the purpose of BOR 2 Risk.

15.In respect of his feared harm arising from his father’s dispute with the injured man, the Board accepted there is a real risk of harm from members of the Hawiye clan and/or the injured man if the Applicant is refouled to his home village.  It also considered the harm would meet the high threshold to amount to cruel, inhuman, degrading treatment and punishment (“CIDTP”) and/or Persecution as well as a real risk of loss of life, such that he has substantiated his claims under Persecution Risk, BOR 3 Risk and or BOR 2 Risk.  But, for the same reason as mentioned in paragraph 12, it did not consider the Applicant would face any real Torture Risk, nor did it consider there was any issue of state acquiescence.

16.As for his risk of returning under the assumed identity, the Board’s basic position is that it is wrong to require the Applicant to modify his behaviour to avoid the proscribed harm.  If the Applicant is to resume living in his aunt’s home town using his true identity, for same reason as given in paragraph 12, the Board considered he would not be at risk in respect of clan violence generally; but may be at some remote risk from the injured man and/or the Hawiye clan.  If he were to declare his true identity, the Board accepted there is a more than remote possibility that he would face societal ostracism from members of the Sheekhaal clan and would not be accepted by the local Ashraf clan.  Without support from either clan, the Applicant will face a real risk of harm in his aunt’s home town. 

17.As for his feared harm relating to the general violence from Al Shabaab organisation and the instability in Somalia, the Applicant conceded that he had no personal encounter with Al Shabaab while living in Somalia.  The Board was satisfied from authoritative and credible COI that Al Shabaab is no longer a force in Mogadishu and that its attacks are primarily targeted at government and foreign interest.  While accepting that the Applicant may be at risk of some collateral harm, the Board considered the risk remote and not real.

18.Despite the Applicant indicated that his wife and daughter will accompany him to live in Somalia if he has to be refouled, the Board also considered the emotional and psychological harm he would suffer if his wife somehow changes her mind.  The Board considered that such harm would not be suffered for a Convention reason and would in any event not meet the minimum level of severity as to amount to CIDTP.

19.Nevertheless, the Board was satisfied on the basis of the COI that the Applicant may safely relocate to Mogadishu where clan violence is less serious[7] and the risk of collateral harm from Al Shabaab attacks is low.  The Board rejected the Applicant’s submission that Al Shabaab targeted Somalians returning from overseas.  The Board accepted that he may face some risk of harm from the Al Shabaab as a general citizen but that risk was not sufficient to amount to any of the proscribed risks of harm.  The Board also held that the Applicant should be able to establish contact with other members of the Ashraf clan in Mogadishu and start a new life there.  As a relatively young man it would not be unduly harsh to expect him (and his family in Hong Kong should they decide to travel with him to Somalia) to internally relocate to Mogadishu. 

20.The Board therefore concluded that despite the harm, internal relocation to Mogadishu was a viable option to avoid the feared harm.  Hence, it dismissed the appeal and upheld the decision of the Director in the Notice.

The applicable legal principle

21.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8].

Grounds of application

22.The Applicant’s ground for judicial review as stated in his supporting affirmation is that the Board did not deeply investigate or clearly look into his problem, particularly that his father was murdered and the rest of his family had fled.  In effect, he is disputing the finding of fact by the Board.  Despite he had been invited to make submissions, he did not advance any reasons or argument as to what is wrong with the Decision.  He also defaulted at the hearing.  Absent any specific grounds of application or grounds with adequate particulars, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision.

Discussion and conclusion

23.In effect, the Applicant is challenging the finding of fact by the Board.  He cannot complain about the primary finding of fact by the Board as the Board accepted his evidence in total.  His real complaint is about the Board’s finding of availability of internal relocation on the basis of the COI.  This is a finding of fact solely within the province of the Board.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review which is not permissible in a judicial review.  As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or is otherwise irrational. 

24.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board accepted the Applicant’s evidence in total.  It exercised great care in assessing the risk facing the Applicant.  It found in his favour that it would be unreasonable to require the Applicant to modify his behaviour and resume his life living in his aunt’s home village under an assumed identity.  It found in his favour that he would be at risk returning to his home village.  It also found in his favour that he would be at risk resuming his life in his aunt’s village and declaring his true identity.  But even on those finding, the Board found the feared harm could be avoided by internal relocation.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  This Court could detect no error of law in the Decision.  The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational.  These finding of fact are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

25.The proposed judicial review is doomed to fail. As the application was made grossly out of time and has no prospect of success, it becomes unnecessary to investigate the other three factors mentioned in AW and Director of Immigration.  Accordingly, leave will not be granted for filing the Form 86 out of time.  The Applicant’s application for leave to apply for judicial review is refused.

Dated the 1^st day of September 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 63/2015 (unreported) 3 November 2015

[6] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[7] Paragraphs 51 and 116 of the Decision

[8] [2018] HKCA 524 at para 14(1)