Cisse Mamadou Aliou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 60/2019

[2023] HKCFI 133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 60 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 31 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nigeria and Guinea.  He last entered Hong Kong on 7 June 2015 and was permitted to stay as a visitor until 21 June 2015.  He did not depart and had overstayed since 22 June 2015.  On 24 June 2015, he surrendered to the Immigration Department.  On 25 June 2015, he lodged a non-refoulement claim.  His claim was based on the fear that, if refouled, he would be harmed or killed by (i) his late father’s brothers, James, John, Ndubisi and Romanus (the “Brothers”) due to a land dispute and (ii) by a group known as Ogboni Fraternity (“Ogboni”).

5.According to the applicant, his father was a well-established business man in West Africa.  In February 2012, his father was murdered at home.  The applicant and his mother reported the murder to the Amambra police station but the report was of no avail.  On 5 March 2012, they held a funeral for his father.  During the funeral, they were informed that his father belonged to the Ogboni and, prior to the death, his father had informed the members that he wished to sacrifice the applicant to accompany him after he died.  The applicant’s mother rejected this unreasonable request.  After the funeral, the applicant returned to Lagos for his own trading business.  He would come back and forth between Lagos and Amambra to take care of his father’s business.  In Mid-2012, he had been receiving threatening phone calls from members of Ogboni, as well as harassed by the Brothers who were members of that group.

6.The Brothers also targeted the applicant with an attempt to exclude him from his late father’s estate.  In August 2012, the applicant learnt from his sister that their mother was beaten by the Brothers to death when she refused to leave their family farmland.  The report to the police station about his mother’s death was again of no avail.  When the applicant was in Amambra for his mother’s funeral, the Brothers kept sending death threats.

7.In October 2012, while the applicant was in Lagos, he was notified that his sisters were also killed by some attackers.  The applicant suspected that they might be the Brothers.  He then returned to Amambra and stayed for two weeks.  In the village, he met the Brothers who admitted the killings of his sisters.  Nothing eventful happened to the applicant during his stay in the village.  Thereafter, upon the advice of the elders, the applicant left for another village.

8.In February 2013, the applicant returned to Lagos.  Yet, he bumped into the Brothers on the street and believed that the Ogboni could locate him everywhere due to its strong connections.  The applicant then escaped to Benin and later to Guinea.  However, while in Guinea, the applicant was kidnapped by some unknown men who he believed to be members of Ogboni.  He was detained for six days without food and drinks.  Yet, the applicant was able to escape from the kidnappers.  Out of fear, the applicant fled to China.  During his stay in China, in June 2015, he saw the Brothers again and immediately fled the scene. Eventually, the applicant escaped to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 9 October 2017 by the Director (the “Director’s Decision”). 

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low level of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[24]; (ii) state protection would be available to him [25]-[29]; and (iii) internal relocation was a viable alternative [30].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 4 October 2018, the Board conducted an oral hearing for his appeal, during which he testified.  As the applicant was fluent in English, no interpreter was needed at the hearing [12].

12.The Board summarized the applicant’s claim and his personal background [13].  It proceeded to assess the applicant’s credibility by weighing all the evidence including those he gave before the Board [30]-[52].  The Board noticed that the applicant had not provided any documentary evidence in support of any material aspects of his claim, such as his father’s business or the deaths of his family members [58].  Even assuming that these material aspects were true, the Board still cast doubt on the assertion that his mother and sisters were killed by the Brothers who wished to acquire his father’s business [59].  In particular, the Board noted that the applicant had no evidence to identify the killers. Nevertheless, it was not plausible for the killers to target his mother and sisters when the applicant was the one who would inherit his father’s business [60].  It further noted that the applicant was never seriously harmed [61]-[62].  As to the alleged kidnap incident, the Board refused to accept that it happened as the applicant was left unharmed during his alleged six-days detention when he claimed that the Brothers threatened to kill him [64].  It also rejected the applicant’s claimed encounter with the Brothers in China [65].

13.Meanwhile, the Board found that the applicant’s behaviors, such as remaining in China for 18 months without seeking protection, were inconsistent with someone genuinely feared a risk of harm [66].  It also confirmed the country of origin information (“COI”) in the Director’s Decision that the alleged denial of police protection was without merits [67].  Having considered all the evidence, the Board also rejected the applicant’s claim that he was of adverse interest of the Ogboni, or any other cult or groups in Nigeria or Guinea [68]-[71].

14.Besides, COI did not support the applicant’s assertion that, as a Christian, he would be targeted by Boko Haram or any other Islamic group or individuals [72]-[75].  Nor did the applicant successfully establish a claimed fear of harm due to his late father’s political affiliation [76].

15.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

16.The applicant has filed Form 86 dated 8 January 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without raising any specific ground.

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

21.The Board had assessed his evidence and rejected his story with reasons. There is no valid reason from the applicant to challenge the Board’s Decision.

22.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 26^th day of January 2023

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