Kone Youssouf v. Torture Claims Appeal Board

HCAL 2980/2019

[2022] HKCFI 3574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2980 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Mali who arrived in Hong Kong on 22 April 2017 as a visitor with permission to remain up to 6 May 2017 when he did not depart and instead overstayed, and on 15 May 2017 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Mali he would be harmed or killed by his uncle over some personal dispute between them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Segou, Mali and later moved with his family to Bamako where his father operated a business trading in clothing, electronic and jewellery goods, and in which the Applicant also assisted after leaving school.

3.In 2015 the Applicant converted his religion to Christianity which angered his uncle who forbade him to practice his Christianity.

4.In December 2016 while he was on a business trip to China, the Applicant was informed by his sister that his uncle had murdered his father and taken over his father’s business.

5.Upon returning to Mali, the Applicant confronted his uncle who however threatened to kill him too if he dared to interfere with his affairs, and several days later some gangsters came to the Applicant’s home to attack him with wooden sticks, and before they left they warned him that his uncle did not want to see him again in Bamako.

6.As a result, the Applicant became fearful for his life, and so in April 2017 he departed Mali for Nigeria, and later he travelled to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 20 December 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”).

8.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 uncle and his followers upon his return to Mali as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle was a private family 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 (“COI”) show that reasonable internal relocation alternatives are available in Mali with a large population of 18 million people spread across a vast territory of more than 1.2 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 the country away from his home district in large cities such as Sikasso where it would be difficult if not impossible for his uncle to locate him.

9.On 31 December 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 22 May 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the Applicant’s evidence as to his claim including his background history or his alleged religious conversion and dispute with his uncle extremely vague evasive incoherent contradictory and superficial with almost no comprehensive content that it concluded that no credence could be given to any aspect of his claim that it failed on all applicable grounds.

11.On 10 October 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 affidavit 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. 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.

12.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.

13.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 20 – 35 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.

14.The fact is that it has also 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 Mali, 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.

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 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.

16.Furthermore, the Applicant recently on 6 October 2022 filed an affidavit requesting to withdraw his application as he no longer has any fear to return to his home country.

17.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more fear to return to his home country, I accordingly dismiss his leave application.

Dated the 25^th day of November 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