Saley Zakari v. Torture Claims Appeal Board

HCAL 885/2019

[2023] HKCFI 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 885 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 the Republic of Niger (“Niger”) of West Africa who arrived in Hong Kong on 10 March 2016 as a visitor with permission to remain up to 24 March 2016 when he did not depart and instead overstayed, and on 29 March 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Niger he would be harmed or killed by his paternal uncle over a land dispute in his home village between his uncle and the Applicant’s father. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was said to be born and raised in City Bass, Niamey, Niger. After leaving school he assisted his father farming in his father’s farmland in his home village inherited from his grandfather, and in about 2011 or 2012 he then moved to neighbouring Nigeria to run his own clothing business in its city Lagos.

3.In 2015 he heard from his mother that his uncle had raised issues with his father over the inheritance of his grandfather’s farmland which led to a court case between them, and after his father had won the case upon production of the title documents of the land as evidence of his father’s entitlement, his uncle then made threats against his father.

4.Later in January 2016 the Applicant was told by his mother that his father had been murdered by some unknown men whom she suspected were sent by his uncle, but in the absence of any real evidence the police had refused to take any action against his uncle.

5.When the Applicant subsequently returned to Niger for his father’s burial, his uncle approached him to demand that he handed over his father’s title deeds to the farmland, and when the Applicant refused as he did not know where his father had kept them, his uncle became furious and tried to attack him with a knife, but the Applicant managed to make his escape and fled back to Lagos in Nigeria.

6.Upon returning to Lagos, the Applicant was later advised by his mother that his uncle was looking for him everywhere and that it was not safe for him to remain in Lagos, and so the Applicant in early March 2016 departed Nigeria for Ethiopia and Macau, and on 10 March 2016 he arrived in Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”)

7.By a Notice of Decision dated 27 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”).

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 upon his return to Niger as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Niger if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Niger with a large population of 19 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 Niger away from his home district in large cities such as Zinder or Maradi where it would be difficult if not impossible for his uncle to locate him.

9.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 6 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 February 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant’s evidence unreliable and incredible that it doubted the credibility of his claim of fear of harm from his uncle over some land dispute between his uncle and his father that caused him to leave Niger for Hong Kong, that it also doubted that he was in fact from Niger given that he was unable to speak any French which is Niger’s official language and that he did not appear to know anything about Niger or his father’s farmland, while the relevant COI also did not show anything about his asserted birthplace and residence City Bass or his asserted school Ejike Held School and of which the Applicant was unable to give any further details or explanation or clarification when questioned by the Adjudicator at the hearing, or why he would not be able to relocate to other part of the country to avoid any risk from his uncle if such risk is real, while it was also not accepted that there was any logical reason for his uncle to harm or kill the Applicant over his father’s title deeds of the land which would not assist his uncle to obtain the land legally, or that why his uncle had not tried to obtain the documents from the Applicant’s mother who had according to the Applicant been residing in his father’s house on the farmland without any risk or threats from his uncle, while his new assertion that his uncle belonged to the terrorist group Boko Haram who could locate him anywhere was not supported by any evidence other than his own groundless speculation, and that it concluded that the Applicant would not face any real risk of harm from his uncle or anyone upon his return to Niger that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

11.On 1 April 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 affidavit of the same date he just attached a copy of the decision without putting forward 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 43 – 73 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 identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Niger, a decision also confirmed by the Board, and that the Applicant had in fact been residing outside Niger for more than 10 years in Nigeria and running his own business in its largest city Lagos all these years without any risk of any threats from his uncle in Niger other than the only occasion in early 2016 when he returned to Niger for his father’s burial, 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.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, I accordingly refuse his leave application.

Dated the 3^rd day of February 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