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

HCAL 2036/2019

[2024] HKCFI 2614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2036 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 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. He appeared before the Court on 16 September 2024.

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 32, is a Guinean. He last entered Hong Kong as a visitor on 26 May 2015 and he overstayed since 10 June 2015. The applicant surrendered to the Immigration Department on 23 June 2015 and he made a non-refoulement claim on 30 July 2015. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by the Guinean government because of his involvement in the Union des Forces Democratiques de Guinee (“UFDG”).

5.According to the applicant, he joined youth UFDG in around 2006. The applicant was arrested and interrogated by the police every time he attended a protest organized by UFDG. On some occasions, he was assaulted by the police physically or verbally. The applicant also received death threats from the law enforcement agent, warning him not to go against the governing party.

6.On 23 April 2015, the applicant and his uncle participated in a protest, during which he was interrogated by the police in the street for 1-2 hours. On 25 April 2015, his uncle was arrested. When the applicant met his uncle again, he was seriously injured and he told the applicant that he was beaten up by the police. In the meantime, some members of the youth UFDG went missing. Out of fear, the applicant fled Guinea for Senegal on 20 May 2015. Eventually, he arrived in Hong Kong on 26 May 2015.

7.The applicant was of the view that he would be targeted by the police because he was the most influential member of the youth UFDG. He also considered internal relocation not viable because his locality was the safest place within Guinea.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 August 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 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”);

(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”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) it was his mere speculation that he was targeted by the Guinean government [12]; (ii) state protection would be available [13]-[16]; (iii) internal relocation would be viable [17]-[20] and (iv) 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

11.The applicant appealed the Director’s Decision to the Board. On 22 March 2019, the Board conducted an oral hearing.

12.The Board formed the impression that the applicant was evading the questions asked and had doubts towards his credibility [38]. Upon consideration of the country of origin information, although the Board noted that there were significant political problems and human rights abuses in Guinea at the time when the applicant departed from the country, it was not satisfied that the applicant was ever the victim of such abuses given that he was unable to provide a clear or credible account of his own involvement in the demonstrations or of his arrest [39]-[44].

13.The Board was not convinced that the applicant had any significant political profile that would put him into a real risk of harm upon his return to Guinea [44]-[48]. 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 [51]-[67].

14.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

15.The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant says he belongs to an influential political youth group and he had expressed his opinion. He will be arrested and harmed or even killed if he returns to his country. The government of his country is corrupt and he needs help to save his life.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board did not take his case seriously as it did not accept his evidence.

19.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.”

20.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded and his evidence not acceptable. The reasons stated in his affirmation and before the Court are not valid to challenge the Board’s Decision.

21.There is no reason that the Court should interfere with the Board’s finding of the facts.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

23.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 appeared in person.