Baba Adamou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2408/2019

[2025] HKCFI 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2408 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 Levy:

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 July 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 31 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 19 December 2024. The applicant attended in person.

Background

3.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.The applicant is a national of Niger. He left Niger for Nigeria in February 2016, and then flew to China on 14 February 2016. On 13 March 2016, the applicant came to Hong Kong as a visitor and was allowed to stay until 27 March 2016. Upon the expiry of his visa, he did not depart and overstayed. On 6 April 2016, he surrendered himself to the Immigration Department. On 11 September 2016, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by members of Boko Haram (“BH”), which was an Islamic militant group wanting to recruit people to participate in the terrorist activities as well as targeting at Christians. The applicant became a Christian when he was 11.

5.It was the applicant’s case that before he left Niger and eventually landed in Hong Kong, he had several encounters with BH members. In an incident in 2015 when the applicant and his fellow Christians were providing voluntary services to hospital, prison, and homeless associations, BH members shot the Christians. Another incident was the applicant’s receipt of a threatening letter from BH, demanding the applicant to convert to Islam. They also demanded the applicant to give them money and land. These demands were accompanied by threats of having the applicant killed. A few days later, BH members carrying guns, swords and knives came to the applicant’s home. They vandalized his home and demanded him to follow BH. They threatened that if the applicant refused their demand, they would return and kill him. The applicant was assaulted by them. After this incident, the applicant left his home in January 2016 and stayed with his friend in a different city before finally left the country.

6.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low, and there was no evidence suggesting that the government was involved in the incidents. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.On 27 March 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed that the information supplied by him to the Board was true and that there was nothing to add. In assessing the credibility of the applicant’s case, the Board found significant inconsistencies of the applicant’s account of events between the applicant’s answers in his Non-refoulement Claim Form and the evidence he gave at the hearing. The Board concluded that the applicant was not a credible witness. The Board was also satisfied that internal relocation was reasonably available to the applicant. The Board found that the applicant’s appeal failed on all applicable grounds and confirmed the Director’s Decision.

Legal principles applicable to judicial review

8.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.In the applicant’s Form 86, the applicant contended that he was not given sufficient opportunity to make written submissions and that the Board had wrongly relied on information that was hearsay. In his supporting affirmation of the same date, the applicant exhibited a copy of the Board’s Decision and put forward same grounds stated in the Form 86. At the hearing, this court had asked him to elaborate on these grounds. The applicant however informed this court that the grounds set out in Form 86 and in the affirmation were not prepared by him. He had no knowledge of any of the grounds contained in either the Form 86 or his affirmation. Instead, the applicant repeatedly told the court that he believed that by submitting those documents, he could stay in Hong Kong. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. The applicant said that he did not know what error the Board had made and all he wanted to ask for was to be allowed to stay in Hong Kong. He further informed the court that he had a medical appointment in relation to his heart issue in January 2025 and that he would like to stay here to seek medical help. Since the applicant had no knowledge of the grounds stated in the Leave Application and had not adopted them at the hearing, the written grounds will be disregarded. In the circumstances, the applicant was unable to put forth any grounds to challenge the Board’s Decision. He did not say on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

10.The Board’s Decision was arrived at after having examined the applicant’s evidence both on paper and orally in great detail. It found that the applicant’s account was not credible and that even if there was any threat, the applicant would have the option of internal relocation. These are findings of fact, which the court in a judicial review will not interfere with.

11.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

12.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

13.The Leave Application be dismissed.

Dated the 27^th day of January 2025

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