L v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 76/2021

[2023] HKCFI 1197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 76 of 2021

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 oral submissions by counsel for the Applicant in open court;

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

1.   the applicant’s application be dismissed;

2.   the anonymity order be set aside; and

3.   the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which dismissed the applicant’s appeal against the Director’s Decision, refusing his application for non-refoulement protection as described below.

2.The applicant was represented by Mr. Geoffrey Yeung, Counsel instructed by Messrs.  Daly & Association on behalf of the Director of Legal Aid.

3.The hearing was before the Court on 30 March 2023.

The applicant

4.The applicant is a national of Niger.  He entered Hong Kong as a visitor on 3 March 2006 and was permitted to remain as a visitor until 17 March 2006. He did not depart and had overstayed since 18 March 2006.  On 13 September 2006, he was arrested by the police for overstaying.  On 18 October 2006, he raised a torture claim, which was rejected on 21 September 2012.  On 6 February 2013, he lodged a non-refoulement claim.  His claim was assessed on all applicable grounds other than that on torture risk[1].

5.The applicant’s fear of harm originated from the Nigerien authorities and a rebel group called Tuareg.  He feared that, if refouled, he would be harmed or killed by the Tuareg rebels as they forced him to join them and to kill a Nigerien politician.  Consequently, he would be considered as a rebel and harmed or killed by the Nigerien government.  In addition, he claimed to be at a risk of harm by Al-Qaeda in Islamic Maghreb and Boko Haram in their attacks in Niger.

6.The applicant is a Hausa in ethnicity and Muslim by religion.  He did not receive formal education but only studied Koran from 1991 to 2001.  In his home village Wadata, Niamey, he helped tend his family cattle.  In 2002, when the applicant was around 16 years old, he was abducted by the rebels and sent to a camp near the Nigerien/Algerian/Malian boarder.  He was trained to be a child solider.  Since the applicant was uneducated, he could not remember the name of the rebel group.  He said that the name might be “Democratic Movement of Niger”, a name which was later found to be not in existence by the Director.  Meanwhile, the applicant said that the leader of the rebel group had a typical Tuareg name, which he was unsure of the spelling.  In the camp, the applicant was trained to use AK-47s, rocket launchers and handguns.  He was also lectured with the mission of the group, which was to, inter alia, seize the control of cities in Niger, kill the governmental officials and bring changes to the country.

7.A few months later, the applicant sought to escape but failed.  He was beaten by eight to ten rebels with the butt of their AK-47s and stones until he passed out.  The scars of the injuries were left on his head and right thigh. They also killed his camp mate to deter him from escaping again.  One and a half year later, he was transferred to Algeria for further training.  He received two years training with Islamic militants, learnt to speak Arabic and also studied Koran.  In mid-2005, he was again transferred to a camp in Mali.  These transferals cemented the applicant’s belief that the rebel group was connected to Tuareg forces operating at the border regions of the three countries. 

8.In 2006, the applicant was assigned with the first mission to assassinate a government official called Alahach Arouna Bahaderi in Niamey. The applicant did not know any background information about Bahaderi. Nevertheless, the mission was ordered to be aborted by his commander, captain Hadji, at the last moment due to the government security force’s awareness of this plan.  Due to the applicant’s conscience about human life, he begged his commander to let him leave.  In the end, his commander quitted the group with him.

9.Due to the fear that he would be captured again by the rebel group, and that the authorities would kill him because of his involvement in the attempted assassination, the applicant decided to seek protection in Hong Kong.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 September 2017 by the Director (the “Director’s Decision”).  

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the applicant’s accounts for his forced recruitment by rebels in 2002 and involvement in them until 2006 were inconsistent and lacked credence [21]; (ii) his versions of events about the rebels were unconvincing, bizarre and implausible [22]; (iii) it was his mere speculation that the Nigerien authorities would not protect him [23]; (iv) state protection and internal relocation would be available to him [24]; and (v) the scars were unable to support his claim [25].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  On 5 March 2019, the Board conducted an oral hearing for his appeal and he was legally represented.  During the hearing, the applicant elected to give evidence [12].

13.The Board considered the applicant’s oral evidence.  In particular, it noted that, during the interview, the applicant mentioned that he tended a cow, whilst during the hearing before it, the applicant said that his family owned about 15 cows [26].  It also noted that the applicant’s evidence about seeing German tourists or people with white skin was not mentioned in his supplemental non-refoulement claim form [36].  It further observed that the applicant had again left out information about witnessing three people being shot in the legs while he was in the camp in Mali before the Director [54].  Meanwhile, the Board considered a letter produced by the applicant.  The letter was from commander Hadji in 2006, in which Hadji stated that “they” intended to locate the applicant and some of the applicant’s friends were killed [72]-[74].  The Board found that such letter was self-serving and was hearsay evidence.  It therefore refused to attach any weight to the letter [75].

14.The Board also considered the medical examiner’s report.  The report found that the scars on the applicant’s head could have been inflicted by the assault described by the applicant.  Yet, it was also a possibility that they were inflicted by other causes.  Besides, it was impossible to assess whether the scars on the inner side of the applicant’s right thigh was a result of the assault due to the limited information provided by the applicant [78]-[81]. Therefore, the Board concluded that the medical examiner’s report did not advance the applicant’s case [82].

15.The Board examined the applicant’s claimed future risk of harm [83]-[88].  It rejected the applicant’s claim based on a right to family unity [89]-[90]. 

16.Having scrutinized the aforesaid, the Board found that the applicant’s general credibility was questionable for the following reasons:

a.  The applicant’s description about whether he tended the cows was vague, ambiguous and verbose.  He was unable to name the area or give a clear description of the place.  He appeared to be evasive in his attitude and demeanour [93];

b.  His description of the two men who abducted him was vague and generalized.  He could only say that, from their appearance, they were Tuareg [94];

c.  The applicant was vague and generalized about the location of the military camp.  Since he was blindfolded, the alleged location of the border of Mali and Algeria was speculative.  Meanwhile, his description of the military camp lacked significant details [95]-[97];

d.  The applicant’s evidence about whether the camps he stayed in were attacked was inconsistent and vague [98];

e.  The applicant’s omission in leaving out the evidence that he had witnessed three people being shot in the legs in the military camp in Mali undermined his credibility.  As he was legally represented before the Director, his explanation that he had forgotten these information was not persuasive [99]-[103];

f.  The applicant’s evidence in relation to the military trainings he received, including the operation of AK-47s, was vague and lacked significant knowledge [104]-[106];

g.  His evidence on the plan of assassination was also vague and generalized [107]-[109];[112];

h.  Further, the Board was unable to locate references to the name of the government official who was to be assassinated or the name of the rebel group in the country of origin information (“COI”) [110]-[111];   

17.In light of the aforesaid findings, the Board was not persuaded, on balance of probability, that the applicant was kidnaped by a Tuareg rebel group, and held captive by that group, or any other rebel group, for four years as claimed [114].  It further rejected the claim that the applicant was ever involved in the assassination plan against a politician in Niamey [115].  In this premise, the Board found that the applicant would not face future risk of harm upon refoulement [116]-[117].

18.The Board also took into account the COI submitted by both parties.  It accepted that the security situation in Niger was far from stable; that there were instances of attacks, kidnaps and demands of ransom from armed groups like Tuareg, Boko Haram and other Islamist rebel groups [119].  However, the Board noted that these incidents occurred in areas distant from Niamey, where the applicant lived, and mainly targeted state military targets, other armed groups and foreigners.  It further stated that the COI did not go so far as to indicate that gross, flagrant and mass violations of human rights had occurred in Niger, or specifically in Niamey [120].  In any event, the Board found that he could relocate to Niamey, where he resided before departure, to negate the risk of harm from the said groups [121].

19.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

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

20.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.  His Form 86 was further amended on 9 November 2022.

21.Counsel for the applicant has set out 5 grounds in support of this application.

(1)  The Board’s erroneous approach to documentary evidence.

(2)  The Board’s failure to provide proper interpretation and/or take reasonable steps to mitigate the applicant’s linguistic limitations at the oral hearing.

(3)  The Board’s erroneous credibility assessment:

i.    failure to consider the applicant’s “individual and contextual circumstances” or “personal factors”;

ii.   reliance on the lack of details when the applicant had not been asked of such details;

iii.  reliance on the applicant’ demeanour; and

iv.  reliance on minor or insignificant inconsistencies.

(4)  The Board’s failure to properly assess the COI in Niger;

(5)  Error of law – the Board wrongly found that the applicant would have adequate state protection and/or viable internal relocation alternative.

DISCUSSION

22.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).

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

24.In Re: Kartini [2019] HKCA 1022, 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.”

25.In view of the grounds in support of this application, I will be helpful to review the Board’s assessment of the applicant’s appeal, bearing in mind the above legal principles and along the lines of the grounds above.

26.I have noted that the applicant was legally represented by the duty lawyer in the screening process before the immigration officer and by Mr. Daly provided by the Legal Aid Department when he appeared before the Board.

The Board’s conclusion

27.At paragraphs 114 to 117, the Board concluded:

“114. Looking at the evidence as a whole, I am not persuaded, on the balance of probability, that the Appellant was kidnapped by a Tuareg rebel group, and held captive by the group, or any other rebel group, for about 4 years as he claims, or at all.

115. Given my findings in relation to the general credibility if the Appellant, I am not persuaded, on the balance of probability, that the Appellant was assigned to take part, as the driver of a vehicle, in a plot to assassinate a politician in Niamey as the Appellant claims, or at all.

116. In the circumstances, I am not persuaded, even to the low standard applicable, that there is a real risk that the Appellant would be liable to be seriously harmed, even killed, by any of the armed rebel groups which operate in Niger, or in the bordering countries of the Sahel region, if he is refouled to Niger.

117. Similarly, I am not persuaded that there is a real risk, or a real chance, that the Appellant would be at risk of ill-treatment, or any sort, at the hands of state authorities in Niger, if he is expelled or returned to Niger.”

28.The above are the Board’s findings of the facts of the applicant’s claim. Based on such findings, the Board could have dismissed the applicant’s claim without further consideration of internal relocation because the applicant has no factual basis in support of his claim.  However, the Board had gone further to consider that country of origin information (“COI”) on the issue of internal relocation available to the applicant in case it is found faulted on the findings of the facts.

The Board’s assessment of the evidence in coming to the conclusion

29.At paragraph 91, the Board had succinctly summarized the core issues of the applicant’s case:

“The core of the Appellant’s case is that he was kidnapped by rebels, who included Tuareg tribesmen, and kept by the rebels for around 4 years at various military camps in Niger, Algeria and Mali. He says that he was forced to stay with the rebels but was not forced to take part in any military action until he was assigned, in 2006, to take part in the assassination of a Malian politician in Niamey. This plan was abandoned before the assassination was to take place and, thereafter the Appellant departed Niger for Hong Kong.”

30.Obviously, the Board did not have any facts to challenge the applicant’s allegations, which are personal to himself.  The investigation by the Director and the Board was only to test the veracity of the alleged facts as raised by the applicant.  The Board tested the accuracy and consistency of the applicant’s evidence by asking him questions where those issues arose in the applicant’s evidence.  The Board had raised the issue of the number of cows the applicant tended as he said in his statement before the Director that he had “a cow” whereas he said he had 15 cows before the Board.  The applicant complains that the number of cows is not relevant to the core of the applicant’s case [26].  The relevance is not the number of cows he tended, but the accuracy and consistency of his evidence, based upon which the Board may take into consideration when it assessed other evidence given by the applicant.  The Board did not solely rely upon this inconsistency to say that the applicant’s evidence was unreliable.  In my view, the Board’s raising this question should not be faulted.

Ground 1: The documentary evidence

31.The applicant raises this issue as the first ground against the Board’s assessment of the evidence on (a) a letter from commander Hadji to the applicant in 2006 (“the Hadji’s letter”); (b) photograph of scars on the applicant’s body; and (c) the forensic medical examination report (“MER”) dated 9 July 2008 assessing how the applicant’s injuries had occurred.

32.As to the Hadji’s letter, the applicant argues that the Board was in error for giving no weight to it without first verifying it, or giving sufficient reasons that it is self-serving or it amounts to hearsay evidence, without giving the applicant a right to be heard on the Board’s concern.

33.The applicant refers to the decision of the Court of Appeal in M v Torture Claims Appeal Board [2021] HKCA 1523 where the Court of Appeal ruled that the Board in that case “took the erroneous view that no weight should be attached to all hearsay evidence”.  The Board in this case did not make the same proposition on the rule of law on hearsay evidence.  It had taken into consideration of the Hadji’s letter, but decided to attach no weight to it. The reasons are stated in the Board’s Decision:

“72. After the Appellant arrived in Hong Kong, he says that he received a letter from commander Hadji in 2006. The letter is written in manuscript on plain paper and is unsigned. It purports to inform the Appellant that, after his departure from Niger, ‘they’ came to look for the Appellant to arrest him but arrested the writer instead when ‘they’ could not find the Appellant.

73. The writer also informed the appellant that, after the Appellant had departed Niger, a good number of his friends had been killed. The appellant was also informed that his mother had died after his departure from Niger.

…

75. The letter is a self-serving document the content of which amounts to hearsay evidence.  In the circumstances, I am unable to attach any weight to the letter.  It does not advance the Appellant’s case.”

34.The Hadji’s letter can be found at pages 417 and 418 of the bundle of documents.  It is hand-written, without signature or the name of the writer.  It is therefore clear that it is very difficult, if not impossible, to test the veracity of this document.

35.The weight to be given to the Hadji’s letter is a matter of discretion for the Board.  The applicant further argues that the Board was in error for not authenticating the Hadji’s letter and not giving the applicant a right to be heard.  The applicant was, throughout the hearing before the Board, represented by Mr. Daly, who should know the burden of proof being on the applicant.  Mr. Daly should be aware of how the Haji’s letter should be adduced to the Board as evidence.  He should, if it is necessary to do so, prove its authenticity to the Board.

36.It is noteworthy how the Hadji’s letter was adduced to the Board as corroborative evidence of the applicant’s story in relation to his kidnap by the abductors and his detention in the camps for more than 4 years.  The Hadji’s letter was brought up during the hearing before the Board by the applicant in the course of giving evidence.  The Board followed up this issue and made enquiry about it.  Mr. Daly confirmed that he had the Hadji’s letter and he would put it in his closing submissions.  He did so.  But in his final submissions he did not give any information as to when he obtained it from the applicant and why he did not produce it to the Board and to DoJ before or at the hearing.  The Board did not call for a further hearing or demand the applicant to give explanation.  Nor did the Board call upon Mr. Daly to give an explanation.  It made its decision that no weight should be given to the Hadji’s letter.

37.There is no affidavit evidence from Mr. Daly that the applicant’s right to be heard was denied by the Board.  Mr. Daly had had the opportunity to re-examine the applicant and to make final submissions.  Mr. Daly could have made an affidavit to explain the above issues to the Board in his final submissions together with the Hadji’s letter.  Up to date, there is no evidence to solve the above issues.

38.The Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. (as they then were), held:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

39.Also, the MER was only brought to the Board’s attention in Mr. Daly’s final submissions without explanation as to why they were not produced before the hearing.  The Board had exercised its discretion not to give weight to the photograph and the MER as they do not have definite evidential value for the assessment of the facts of the applicant’s claim.  This is within the province of the Board’s discretion.  See Re Kartini.  The Court should not interfere with the Board’s discretion.

40.This ground fails.

Ground 2: Proper interpretation service at the hearing before the Board

41.The applicant complains that the Board had failed to take into consideration the linguistic and interpretation difficulties during the screening interviews and the oral hearing, which constitute procedural unfairness, and the applicant submits:

“41. At the very least, the Board ought to have taken into account these difficulties when assessing the Appellant’s evidence. Failure to do so constitutes an error of law, and/or irrationality, and/or procedural unfairness…”

42.From the transcript of the Board’s hearing, it is quite apparent that there were linguistic problems and communication deficiencies between the applicant and the interpreter.  Those difficulties were solved by repeating the questions or clarifications by the Board and the interpreter.  Mr. Daly did not raise the issue of the capability of the interpreter.  Nor did he make any application for adjournment of the hearing for another interpreter.

43.Having considered the transcript of the Board’s hearing (Bundle pp 533-587) and the final submissions of the applicant’s legal representative (pp 401-408), I find that the above issues were clearly brought to the attention of the Board before it made its decisions.  There is no evidence to show that the Board, having received Mr. Daly’s submissions, refused to consider them before making its decisions.

44.This ground has no substance.

Ground 3: The Board’s erroneous credibility assessment

45.The applicant has raised 4 issues on this ground.  I shall deal with each of them below.

46.The applicant argues that the Board failed to consider his “individual and contextual circumstances” or personal factors”.  They are the applicant’s lack of formal education; the linguistic limitation; the interpretation issues and the potential effect of trauma when the applicant claims to have been abducted when he was 16 years old to become a child soldier with a rebel group.

47.The applicant relies upon these issues to challenge the Board’s findings of his evidence vague and generalized or lacking in detail in relation to the place where he tended his cow(s); the appearance of the applicant’s abductors, and the military camps.

48.The Board assessed the applicant’s credibility on various aspects of his evidence.  See paragraph 16, supra.

49.In relation to the place where the applicant tended the cow(s), the Board observed:

“27. ... I asked the Appellant where he had been tending the cow(s) and he replied that it was close to a river – the Niger, not the sea. He conceded that the location was an urban area. He said ‘I don’t know if it’s North or elsewhere.”

28. When I asked him if there were any landmarks near where he tended cows, the Appellant gave a long-winded answer saying that where he lived was “far from the people who fish, and the place where I tended cows.  It’s not near where I live.””

50.I have considered the transcript of the Board’s hearing.  It is quite clear that the adjudicator was alive to the linguistic problems at the beginning of the hearing.  But such problems were not insurmountable that caused the Board to adjourn the hearing for another interpreter.  The Board was able to overcome the problems by clarifying the unclear expressions with the applicant.  To demonstrate the linguistic issue, I shall refer to the transcript at p.534 of the bundle:

Candy: So you can give me an indication now of whether you wish to give evidence and answer questions or whether you wish not to give evidence and answer questions?

Ap:        So, now it’s a very difficult in my country, a lot of wars …

Candy:  No, just a moment.  I’m not asking you what the situation is in Niger; I’m asking you today, do you wish to give evidence by answering questions or do you wish not to do so.

Ap:        so there’s nothing proof with me.

Candy: “There’s …” what?

French interpreter: “Nothing, nothing proof with me here.”

Ap:        (French) …

French interpreter: Okay.

Candy: You’ve already provided a lot of information which is contained in the hearing bundle, in the claim form and during the interview.

Ap:        oui

Candy: I want to ask you some questions about this information which you’ve given, about certain aspects of the information, …

Ap:        D’accord.

51.Mr. Daly had also assisted in supplying missed words in the interpretations.  The interpreter agreed to Mr. Daly’s suggestions and the Board accepted them.  An example can be found from the transcript at page 551:

Candy: And did any members of the group in the camp conduct any attack?

Ap:        Yes. (French) … (in English) Tourist, tourist.

Candy: “Tourists”.

French interpreter: “Tourists”, oh, okay.  “They caught two tourist cars coming from Germany.”

Ap:        So we saw those people white skins coming into the camp and then they brought them somewhere else, we don’t’ know where.

Daly:     Did he say “Spain”, as well?

(Interpreter seeks clarification from witness in French)

French interpreter: “Spain”

52.The adjudicator was obviously aware that the applicant was allegedly tending cow(s) as he was kidnapped when he was 16 years old.

53.The applicant has raised the example of the description of the two men who abducted him where the Board criticized his evidence as vague or generalized.  It is right that the Board did not set out what details it expected the applicant to give.  From the transcript, the adjudicator had to guide the applicant to describe those two men.  It may be because of this reason, the adjudicator considered that those descriptions were not really from the applicant without assistance from the Board.  I shall refer to the transcript below to show the evidence on this issue at page 540 of the bundle:

Candy:    And when they arrived in the car, was this on a road or a street?

App:       It’s a road.

French interpreter: “Route”, “route” R-O-U-T-E.

Candy:    Yes.  Was this a paved road or was it a dirt road?

App:       So, it’s a dirt road.

Candy:    So you say these two men arrived in the car and one of them approached you?

Ap:         Yes.

Candy:    What did you say to them?

Ap:         So he said, “What are you doing here?”

Candy:    Yes, and what did your reply?

Ap:         And so I said that, “Here, I’m here.  I give …”

French interpreter: “I feed…”

Ap:         …my cows.  I was speaking and then he grabbed me in the car.

Candy:    Did you not resist?

Ap:         Yes, I did, I did.  So he was grand …

French interpreter: “He’s a big”.

Ap:         … and just like a giant.

Candy:    And these two men that were there, did you notice what clothes they were wearing? Were they wearing traditional dress, were they wearing Western clothes, were they in uniform, for instance?

Ap:         So it’s traditional with …

French interpreter: “So, a traditional dress with …”

Ap:         … a long and I did not see as their faces.  And then like this and like this.

Candy:    You’re saying they were wearing a headgear, a sort of headgear wrapped around their head and fact; is that right?

Ap:         Yes

Candy:    And this is … did you recognize the headgear as being from a particular group or tribe?

Ap:         Yes, yes.  The Tuareg group.

Candy:    Now, you say that one of them who came forward and spoke to you tried to recruit you.  What do you mean by tried to recruit you?

Ap:         He asked to work with you, to attend some training, to work with those people and the rebels.

54.I accept that without setting out his requirement as to the details of the abductors he expected from the applicant, the adjudicator formed his opinions, relying on his impression of the applicant at the hearing.

55.The Board was entitled to its views on the applicant’s evidence, especially on the applicant’s demeanour at the hearing.  Even if the Board is found to be too demanding on the details of the abductors, this part of the evidence only forms part of the applicant’s evidence.  On the totality of the applicant’s evidence, I do not form the view that the Board’s finding on the issue of his credibility Wesnesbury unreasonable.

56.Another example given by the applicant is the description of the camp in the place border in Mali with Algeria [bundle 544 k].  The Board considered that the applicant’s evidence was vague.  This can be seen from the transcript. At page 544 of the bundle at N, the adjudicator said:

“Adjudicator: Well, when I asked you to describe the military camp that you saw, you just described the area, the mountain area. What was the military camp like?

App. So, it’s a camp that is really a military camp. When you arrive there, you’ll recognize and you can see those Mujahideens and (French)…

Adjudicator: Well, what did you see when you arrived?

App. (French) …

Interpreter: So, he’s drawing a map, a chart, like this.”

57.Similar situations took place from time to time during the hearing.  The Board might take it that the applicant was vague in his answers to its questions.

58.The applicant also referred to the evidence of “significant knowledge of the use of an AK47 rifle”.  This is within the context of the military training that the applicant might have received during his period of detention in the camps.  The Board specifically asked him to demonstrate how to use AK47 rifle.  The Board noted his reply:

“You have bullets and you put them in there …”

It was put on record that the applicant had given some hand gestures to demonstrate the use of it.  However, the Board is not satisfied with his answers, saying that it is vague.

59.The Board had considered the applicant’s evidence, including his hand gestures before it.  It was entitled to form its views on the applicant’s evidence although it did not set out the details that it required the applicant to give.  The Court will not interfere with its discretion.

60.The applicant further argues that the reasons for him not mentioning the incidents of seeing German abductees and people who had been shot in the legs in the rebel’s camp is that he was not asked and that “some things come to my mind.”  Counsel for the applicant submits that to criticize the applicant for failing to mention such evidence before, when he had not been asked for such details, on previous occasions during the screening process, is unfair, irrational and contrary to established legal principles.

61.The Board has given its reasons in paragraphs100-102:

“100.  The Appellant acknowledged that he had been legally advised and represented at every stage of the first-tier screening of his non-refoulement claim.

101.  When I asked why he had not mentioned these incidents previously, he gave a rambling and verbose response which did not address the issue.  Finally, he said that he often forgets things.  In relation to the incident when the people who had been shot in the legs were brought to the rebels’ camp, the Appellant acknowledged that he had not previously mentioned this and explained that, in response to my questions, “some things come to my mind.”

102.  The Appellant’s answers do not provide a reasonable explanation for his failure to have previously mentioned significant and relevant evidence, which was within his knowledge, especially since he had the benefit of legal assistance and advice from the outset.”

62.The non-refoulement supplementary claim form [bundle 128], paragraph 4 states:

“In completing this form, it is important for you to include all material facts and events relevant to your non-refoulement claim irrespective of whatever ground(s) you seek to rely on to seek protection. You may enlist help of your legal representative in completing this form. The information provided will form the basis upon which your claim is investigated, upon which you may be required to attend an interview and upon which a decision whether to accept your claim as substantiated or reject your claim will be made….”

63.It is not unreasonable for the Board to take the view that those incidents above are significant that should not escape the applicant’s attention when he gave his statement to the Director.  The Court should not interfere with the Board’s discretion in its assessment of the evidence.

64.The applicant argues that the Board should not rely upon his demeanour when giving evidence to discredit his credibility, referring to §93 of the Board’s Decision.  The Board was discussing the applicant’s evidence on his location in Niamey and the abductors’ descriptions and it did not solely rely upon the applicant’s demeanour to determine his credibility.  It had also relied upon the evidence given by the applicant.  Demeanour is not reliable if it is the only or major factor for determining the credibility of the evidence. It is an advantage of a hearing with the physical presence of the parties so that the adjudicator can observe the witnesses for the purpose of assessing their credibility in giving evidence.

65.The applicant submits that only inconsistencies in his evidence that go to the core of his claim should determine his credibility.  Counsel submitted that the number of cows he tended and the incidents of the German abductees in the Algerian military camp and the injured people in Mali are not central to his claim.  As mentioned in paragraph 29, supra, the core of the applicant’s claim is the truth of the facts he stated in his NCF and SCN to the immigration officer.  The Board had no evidence to challenge the facts he stated.  It could therefore only test whether the facts stated in his statement are true.  It is only natural that the Board should, in the investigation of the facts of the applicant’s case, raise the inconsistencies with the applicant and it is for him to explain.  In fact, the incidents of the German abductees and the people injured by the rebels are relevant to his claim because he was trying to demonstrate how dangerous it would be for him to face the rebels if he returns to Niger.

66.The applicant submits that the Board had not stated in the Board’s Decision the fact that it had taken into consideration his personal background such as his education, the trauma during his detention and the linguistic issues in the hearing in its assessment of his credibility, which will render the Board’s assessment on the applicant’s credibility unfair and unreasonable.

67.I accept that it would be better if the Board put those factors in the Board’s Decision to show that it had taken those factors into consideration in its assessment of the applicant’s evidence.  However, where those factors were clear to the Board in the course of the hearing as can be seen from the transcript, the omission of putting the caution into the Board’s Decision should not be taken as the Board had not taken the factors into consideration in its assessment of the evidence.  Obviously, Mr. Daly had brought those factors to the Board’s attention in his final submissions.  In his written final submissions, Mr. Daly submitted:

“8. The Appellant had no formal education. He tended to his cows. This is significant when we look at the type of questioning and the assessment of credibility.” [402]

9.2  Fifthly, given interpretation and grammar concerns …

68.This ground therefore fails.

Ground 4: The Board failed to properly assess the COI in Niger.

69.The applicant submitted that the Board erred in adopting an erroneous approach to the assessment of COI, and/or an irrational assessment of the COI, and/or failing to undertake a fair and balanced review of the COI, and/or failed to give adequate reasons for the Board’s finding on the COI, regarding:

a.  regions of armed conflicts in Niger and there are a number of reports that such conflicts occurred in and/or near Niamey (such as in the Tillabery (also known as Tillaberi) Region which surrounds the capital district of Niamy;

b.  the targets of terrorist attacks against civilians in addition to military targets and foreigners; and

c.  the Board’s failure to consider the COI which corroborates the applicant’s claim in relation to the specific Tuareg rebel group that he fears.

70.The above comments refer to the Board’s findings in paragraphs 120 and 121 of the Board’s Decision:

“120.  However, it is noted that the majority of these incidents [instances of attacks] have occurred in areas distant from Niamey and have mainly been directed against state military targets, other armed groups and foreigners. The COI reports do not go so far as to indicate that gross, flagrant and mass violations of human rights have occurred in Niger, or specially in Niamey.

121.  In the circumstances, even if the Appellant were to establish (and he has not done so) that there is a real risk, or a real chance, that he would be subjected to serious harm, even death, at the hands of Tuareg rebels, Boko Haram, other Islamic rebel groups, or at the hands of the state authorities in Niger, if he is refouled to that country, I am satisfied that he could safely, and without undue hardship, avoid any such risk if he were to reside in Niamey, where he lived before his departure from Niger.  The general situation in Niamey would not place the Appellant at risk of serious ill-treatment solely because of his presence there.”

71.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), Re Kartini, §24 supra.  The Board said that the majority of the rebel attacks occurred outside Niamey and the attacks directed against state military targets, other armed groups and foreigners. The main theme of the Board’s finding is “The COI reports do not go so far as to indicate that gross, flagrant and mass violations of human rights have occurred in Niger or specially in Niamey.”  This is in accordance with section 37ZI (5) of the Ordinance[2]. The applicant has not disputed with the Board’s findings on the main theme.

72.This ground fails.

Ground 5: error of law: The Board wrongly found that the applicant would have adequate state protection and/or viable internal relocation alternatives

73.In view of the finding of the facts above, the Board found that the applicant has no factual basis in support of his claim.  As discussed in paragraph 28, supra, the Board could have dismissed the applicant’s claim.  However, it went further to consider internal relocation.  The applicant’s complaint is on the basis that the Board’s finding of the facts is wrong, in which case, I accept that the Board might have omitted the incident of the applicant being kidnapped by the Tuarey rebels whilst he was tending his cow(s) in Niamey.  However, I find that there is no valid reason to challenge the finding of the facts by the Board.

74.This ground also fails.

Conclusion

75.The applicant has failed to establish that there is any valid ground to challenge the Board’s finding of the facts.  Accordingly, the applicant fails to show that there is any reasonable prospect that his intended applicant for judicial review of the Board’s Decision will succeed.

DISPOSITION

76.I shall make an order in terms as follows:

(1)  the applicant’s application be dismissed;

(2)  the anonymity order be set aside; and

(3)  the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 5^th day of May 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