Mahamadou Seydou Mahamadou Sani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 789/2019

[2023] HKCFI 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 789 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 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Therefore, his application is dealt with 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 Niger. He last entered Hong Kong on 19 October 2016 as a visitor and was permitted to stay until 2 November 2016. He did not depart and had overstayed since 3 November 2016. On 11 November 2016, he surrendered to the Immigration Department. On 13 April 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle due to a land dispute.

5.In short, the applicant’s parents died from a fatal car crash. As the eldest son of the family, he would inherit his father’s land. However, his uncle, who claimed to have the ownership in the capacity of his deceased father’s brother, attempted to take over the land. His uncle constantly sent armed mafias to harass the applicant. In the four incidents, the applicant did not sustain injuries and was able to escape from the mafias. Thereafter, in 2013 to 2016, the applicant had been traveling back and forth between Niger and China for his business. In 2016, his business suffered a loss and he could no longer extend his stay in China. As a result, he came to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 31 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[17]; (ii) state protection would be available to him [18]-[21]; and (iii) internal relocation was a viable alternative [22]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 October 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [10].

9.The Board recapped the applicant’s claim, his personal background, and summarized the Director’s Decision. It also considered the applicant’s oral evidence. Having assessed all the evidence, the Board found that the applicant was not a credible witness [77]. In particular, the Board considered that the applicant’s evidence was vague and lacked details [77]; that his uncle or the alleged mafias sent by his uncle did not possess an intention to cause serious harm or even kill him [78];[81]; that he did not seek help from the police or other authorities [79]; that his ability to travel for business since 2013 undermined his claimed fear of harm [82]; that his inference that his brothers were harmed by his uncle was not persuasive [83]; that his delay in seeking protection undermined his credibility [84]-[85]; that his assertion about his uncle’s involvement in his parents’ death was not credible [86]; and that there was appropriate settlement mechanism of land dispute in his home country [87]. In any event, internal relocation was available to the applicant [90]-[91].

10.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

11.The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, he did not raise any specific ground.

DISCUSSION

13.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).

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

15.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.”

16.The Board did not accept his evidence in support of his claim. There is no valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

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

Dated the 11^th day of April 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