Almir Sidy Ahmed Sidy Ahmed Baba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1388/2019

[2024] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1388 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 16 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application 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, aged 37, is a Malian.  He entered Hong Kong on 6 October 2015 as a visitor.  He overstayed since 21 October 2015 and he surrendered himself to the Immigration Department on 26 October 2015.  The applicant made a non-refoulement claim on 5 February 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the Jihadists because he was an Arab.  He might also be harmed by other Malians because they thought all Arabs were Jihadists.

5.According to the applicant, he and his family moved to Guinea in 1991 to avoid the Holy Wars initiated by Jihadists.  His grandfather, who did not relocate with them, was killed by the Jihadists in Timbuktu, Mali in 1994.  The applicant and his family returned to Mali in 1995 and stayed in Bamako.  In 2006, the applicant studied in Tunisia for two years.  In 2010, he started studying in China.  By around 2012, the situation in Mali worsened and the applicant’s family relocated to Mauritania in 2013.  In 2015, upon his graduation from university, his classmates in China recommended him to come to Hong Kong to seek protection.  The applicant then left Mainland China for Macau and subsequently arrived in Hong Kong on 6 October 2015. 

6.The applicant maintained contact with his family members since his arrival in Hong Kong.  His mother told him that Jihadists were still very influential in many parts of Mali and his father’s cousin was killed by them in Timbuktu in December 2017.

7.The applicant was of the view that he could neither seek help from the authorities nor could he relocate internally within Mali because Jihadists were too powerful in Mali, so that he would be located, harmed and killed.  Furthermore, other Malians also hate Arabs/touaregs because they thought they were Jihadists.  The Malian government also arrested people with Arab physical appearances. 

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 May 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the absence of past ill-treatment from the Jihadists is indicative of a small future risk of harm upon his return to Mali [13]-[15]; (ii) state protection will be available to him upon his return [16]-[18]; (iii) internal relocation is viable [19] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[30] or Torture risk [31]-[34].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 7 January 2019, the Board conducted an oral hearing.

12.The Board accepted the account of events given by the applicant.  However, it noted from the recent Country of Origin Information (“COI”) that attacks by Jihadists happened mainly in northern Mali rather than in Bamako, which is located in central Mali.  The COI also indicated that the situation in Mali in 2017/2018 was less volatile than it was in 2012 to 2014.  As such, the Board was of the view that the risk of harm by Jihadists and the generalised violence in Mali was remote or speculative.  On the other hand, the Board did think the applicant faced a real risk of harassment/discrimination from non-Arab Malians seeking revenge from the Arabs.  Yet, such harm failed to meet the minimum standard of severity required for a non-refoulement claim [30]-[49].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk [14]-[16], [50]-[52], BOR 2 and BOR 3 risk [17]-[21], [55]-[58] or Torture risk [22]-[25], [53]-[54].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.The applicant has filed Form 86 dated 22 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision and the hearing bundle without any specific reason.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

18.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.”

19.The Board had taken on board the issues of the applicant’s fear in relation to the militant groups, the Arab ethnicity and the general violence in Bamako.  The Board had also had a dialogue with the applicant during the hearing in relation to those issues mentioned.  Having considered the evidence, the Board took the view that the applicant does not have any real risk of being subjected to the applicable risks if he returns to his country.  There is no valid ground from the applicant to challenge the Board’s Decision.

20.In the circumstances, there is no reason that the Court should interfere with the Board’s finding of the facts.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.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 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