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

HCAL 815/2019

[2023] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 815 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 1 March 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

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

The applicant

4.The applicant is a national of Ghana.  He entered Hong Kong on 25 February 2007 and was permitted to remain as a visitor until 11 March 2007. However, he did not depart and had overstayed since 12 March 2007.  On 24 November 2015, he surrendered himself to the Immigration Department.  On 29 March 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Fetishism followers because he converted to Islam faith and was involved in the Muslim community.

5.According to the applicant, his father used to be a local leader of the Fetish community in their home village.  However, in around 1981, his father decided to convert to Muslim, a decision followed by the applicant and other family members.  The Fetish community were furious about their conversation because of his father’s previous role as a leader.  They posed death threats to the applicant’s father.  In 2001 or 2002, his father was assaulted.  Despite recovered, his father could no longer undertake the heavy duties in the Muslim activities.  As a result, the applicant took over his father’s leadership in the Muslim Mosque.  The applicant claimed that he was also assaulted by the Fetish villagers.  He remembered that one of the assaults happened in mid-2005, during which his right shoulder was dislocated and right knee in pain. Subsequently, he left for Accra.  However, he still bumped into the Fetish villagers. Out of fear, he decided to seek protection in Hong Kong.  Details of his claim are set out at paragraphs 7 to 49 of the Notice of Decision dated 27 February 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 upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [55]-[64]; (ii) state protection would be available to him [65]-[68]; and (iii) internal relocation was a viable alternative [69]-[78].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 19 November 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [3].

9.The Board considered the country of origin information and noted that there were increasing numbers of Muslims; that Muslims were in fact predominant in the northern part of Ghana where the applicant came from; and that there was a lengthy delay in the applicant’s lodge of non-refoulement claim.  Thus, the Board refused to attach credence in the applicant’s motive in seeking protection in Hong Kong [19]-[24].

10.In assessing his claim on the individual grounds, the Board noted that the alleged perpetrators were individuals rather than state actors; and that state protection and internal relocation were both available for the applicant [25]-[33].

11.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

12.The applicant has filed Form 86 dated 25 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said that the Board’s Decision is unreasonable and there was a wrongful application of the threshold. The relocation is not on the correct area. The applicant further submitted that the Board had ignored the fact that his father was assaulted and died. He would also be treated like his father because of his conversion to Islam. That the Director considered that there would not be serious threat to his life after a lapse of over a decade is only his perception. The Board had over-relied on the country of origin information. In fact, many lives had lost because of police brutalities, as a result of corruption and misinformation. There is no guarantee that his life will be safe if he is returned to his country.

DISCUSSION

14.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).

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

16.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.”

17.The applicant’s grounds under paragraph 13, supra, do not assist his application as they are his opinions or comments without any evidence in support of them. The Board had considered his evidence and rejected it for the reasons given. The applicant has raised no valid reasons to challenge the Board’s findings.

18.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.

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

CONCLUSION

20.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 30^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