Balde Mouctar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1763/2019 on BabelCite. This High Court CFI judgment was delivered on 4 October 2024.
1. The applicant applies for leave to apply for judicial review of the Decision dated 20 May 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”).
Cites 2 cases
|
HCAL 1763/2019 [2024] HKCFI 2377 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1763 OF 2019 _____________
_____________
________________ J U D G M E N T ________________ THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 20 May 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 asked for a hearing. However, he was absent at the hearing on 19 August 2024 without prior to the 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 40, is a Guinean. He last entered Hong Kong as a visitor on 20 June 2015 and he overstayed since 5 July 2015. The applicant surrendered to the Immigration Department on 7 July 2015 and made a non-refoulement claim on 5 October 2015 and 17 November 2015. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by members of the Rally of the Guinean People (“RPG”) because he was an active supporter of the Union des Forces Democratiques de Guinee (“UFDG”). 5.According to the applicant, he joined UFDG in 2007 upon graduation from university, which was in opposition to the ruling party RPG. On 28 September 2009, UFDG held a meeting attended by thousands of people. The army intervened the meeting by firing shots at the crowd, killing 150 people including his father (“the 28 September 2009 incident”). In February 2010, the applicant’s mother was also shot dead by the military. 6.On 15 May 2011, there was a UFDG meeting attended by more than 100 members at the applicant’s home. The meeting was subsequently interrupted when about 30 soldiers arrived, threatening to arrest everyone at the scene. Chaos then broke out, whereby UFDG supporters threw stones at the soldiers while the soldiers fired shots at the crowd. The applicant was attacked by an iron bar and suffered injuries to his legs, arms, body and head. He lost consciousness and was taken to a private clinic (“the 15 May 2011 raid”). When the applicant regained consciousness, he was told that many UFDG members had been jailed and some were even poisoned to death during imprisonment. 7.The applicant’s friend told him that soldiers kept looking for him and suggested that he should leave the country to save his life. The applicant stayed at his friend’s home for two days and then travelled to various places including Mali, Benin, Togo and Ghana. On 1 July 2011, the applicant left for China. Thereafter, he travelled between Mainland China and Hong Kong multiple times to extend his visa. He also went to Thailand twice for visa extension. Eventually, the applicant surrendered himself to the Hong Kong Immigration Department on 7 July 2015. 8.The applicant was of the view that he could not seek protection from the police because RPG was still the ruling party, so that he would be arrested rather than being offered assistance. The applicant also considered internal relocation not viable because he believed that he would be located and arrested anywhere within Guinea. 9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 23 August 2018 (“the Director’s Decision”). The Director’s Decision 10.The Director considered the applicant’s claim in relation to the following risks:
11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) there was no evidence indicating that the applicant was specifically targeted by the Guinean government/ the ruling party RPG [11]-[12]; (ii) the applicant’s conduct was inconsistent was that of someone genuinely in fear [13]; (iii) state protection would be available [14]-[16]; (iv) internal relocation would be viable [17]-[20] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[25], Persecution risk [26]-[30] or Torture risk [31]-[33]. The Board’s Decision 12.The applicant appealed the Director’s Decision to the Board. On 22 March 2019, the Board conducted an oral hearing. 13.The Board was concerned about the applicant’s delay to make inquiries in either Hong Kong or Thailand as to the possibility of seeking non-refoulement protection [44]. The Board also noted inconsistencies of the applicant’s account for the 28 September 2009 incident with independent information, hence casting doubts towards his credibility [45]. 14.Meanwhile, the Board found it surprising that the applicant, as a political activist, was unware of the huge demonstration held in April 2011 to welcome the return of the UFDG leader, who had been outside Guinea during the period between the presidential elections and April 2011 [47]. Furthermore, the applicant’s ignorance about the 2010 presidential election voting process was also inconsistent with his claim for being an active UFDG member [48]. 15.Regarding the 15 May 2011 raid, the Board observed from the country of origin information that raids of this nature were neither common nor routine [49]. In the meantime, the applicant’s claim that his mother was specifically killed due to political reason was a mere speculation with no credible evidence in support [50]. 16.The Board was not satisfied that the applicant or his parents were politically active in UFDG. It was not accepted that his parents were killed in the circumstances described or that they were targeted for political reasons. It was also not accepted that the applicant would be at risk of harm for the reasons claimed if he were to return to Guinea [51]. 17.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [54]-[70]. 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 18.The applicant has filed Form 86 dated 25 June 2019 for leave to apply for judicial review of the Board’s Decision. 19.In his affidavit in support of his application, the applicant reiterated his story of coming to Hong Kong and added that as the RPG is the ruling party, he cannot relocate himself and his life will be in danger if he returns to his country. DISCUSSION 20.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). 21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 22.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
23.From the Board’s Decision, it can be seen that the adjudicator had asked him many questions on the facts of his case. She is therefore the best assessor in relation to the credibility of his evidence. The Board had given its reasons above for its conclusion:
24.The Board was entitled to reach its conclusion as it did. The reasons raised in paragraph 19 is not valid to challenge the Board’s Decision. 25.There is no reason that the Court should interfere with the Board’s finding of the facts. 26.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 27.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
The applicant was not represented and did not appear. | |||||||||||||||||||||||||||||
Cases cited in this judgment