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

HCAL 1590/2019

[2024] HKCFI 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1590 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 the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 9 January 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 October 2015 and Notice of Further Decision dated 13 June 2017.

2.He had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.    

3.The leave application was filed more than five months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than two months out of time.  Leave to file the leave application out of time is required.

4.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. 

5.The delay of two months is substantial.  The Applicant gave no explanation for the delay and did not state his grounds of judicial review.  However, having regard to the nature of this leave application, the issues raised, the Decision and all the circumstances, the Court considered that except for merits, none of the factors is determinative.  Instead of incurring time in exploring the reasons for the delay and prejudice, etc, the Court considered it more expedient to go straight to merits of the leave application.

6.The Applicant is a Guinean national, now aged 39.  He entered Hong Kong on 25 May 2012 as a visitor and was permitted to remain until 8 June 2012.  He overstayed and was arrested on 10 July 2012.  On 12 July 2012, he raised a claim for non-refoulement protection.

7.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  His claim under the first three grounds was dismissed by the Director’s Notice of Decision and his claim under the fourth ground was dismissed by the Director’s Notice of Further Decision.  His appeal against the two Notices was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

8.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that, if refouled, he would be harmed or killed by his father’s other wives because they wanted to rid him of his right of inheritance to his father’s land or property.

9.The Applicant was born in Kindia, Guinea.  He had not received any formal education but he could speak English.  He has worked as a labourer and a hawker.  He knows his father by name only but has no knowledge of his father’s personal details such as how many wives or children he has.  He has not even met any of his father’s other wives but he believes his late mother had met some of them before.

10.He grew up with his mother who was a Nigerian in a house owned by his father in Guinea.  He remembers his father frequently physically assaulted his mother during arguments.  His mother did not make any police report about the assaults.  At the age of ten, for reasons unknown to the Applicant, his mother moved to Nigeria with him and cut off contact with his father.  Since then, he never returned to Guinea.

11.In Nigeria, the Applicant’s mother supported them by selling food on the streets while he took up labour work to contribute to the family.  In 1999, the Applicant’s mother started experiencing unexplained medical symptoms, including swelling of the leg and feeling heat from inside her body.  She went to the hospital twice but the doctor there could not diagnose the cause of her symptoms.  She turned to traditional medicine which did not help.  She suffered pain and eventually passed away in 2002.  After his mother’s death, the Applicant supported himself by hawking and working as labourer.

12.Since the age of 17 or 18, the Applicant formed a theory that his mother was murdered by his father’s other wives because of a land or property dispute.  As no one could determine the cause of her death, he suspected that his mother had been poisoned. However, he never sought to investigate this further or report it to the authorities due to a lack of evidence.

13.He turned to a local Catholic church to look for support.  The church arranged his journey to Mainland China.  He left Nigeria on 12 May 2012 and arrived in Guangzhou, China.  In China, a stranger suggested he could find work opportunities in Hong Kong or Macau.  Hence, he came to Hong Kong by bus on 25 May 2012.  He did not raise his claim for protection upon arrival because he did not know about the availability of protection.  After his arrest, he made a claim for protection.  He does not wish to return to Guinea or Nigeria because he has no family there and he fears he would meet the same fate as his mother, if refouled to either of these countries.

The finding of the Board

14.The Board noted that the Applicant had adduce no evidence that his father had other wives or that those wives intended to harm him.  He did not know much about his father or his other wives.  He had never met any of his father’s other wives and had in fact never received any threat from them.  From the limited evidence he provided, it seemed likely that his father had only married once and that was to his mother.  He has no factual basis to support his assertion that he will be harmed or killed by his father’s other wives.  Hence, the Board found his feared ill-treatment remote or non-existent and will not materialize.  He has no factual basis to support his claim for protection under any of the four grounds under the USM.

15.The Board further assessed his claim on the basis that his father’s other wives do exist and intend to harm him.  It found on the basis of authoritative and credible country of origin information that the Guinean government has implemented reforms to improve human rights awareness in its security forces and judicial system.  It held that a reasonable level of state protection would be available to the Applicant upon his return.  It also held that internal relocation to other cities in Guinea or Nigeria where he had lived undisturbed for 19 years feasible.  

The legal principles applicable to judicial review

16.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  

17.The Applicant did not put forward any grounds of application for judicial review in his Form 86 or in his supporting affirmation. He did not respond to the Court’s invitation for submissions.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

18.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim wholly on the basis of the case as he asserted.  It was on that basis that the Board found his feared ill-treatment is unlikely to materialise; and even if it does, he could seek state protection from the authorities in Guinea where his feared harm or risk arose or relocate to other cities in Guinea or to Nigeria where he had lived in the past 18 years without problem.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds.  These are finding of facts and of law.  Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted.  The Applicant could have no reason to complain about the Board’s finding of these primary facts.  It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds.  This is a mixed finding of fact and of law.  Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.The Applicant's claim for non-refoulement protection and his intended judicial review have no merits at all.  In the circumstances, leave will not be granted for him to file his leave application out of time.  His application for leave to apply for judicial review of the Board's decision is therefore refused. 

Dated 3^rd day of January 2024

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