Diallo Ousmane v. Torture Claims Appeal Board

HCAL 1309/2024

[2025] HKCFI 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1309 OF 2024

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 Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 March 2024 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of both Malian and Nigeria who arrived in Hong Kong from Nigeria on 30 March 2014 as a visitor with permission to remain as such up to 8 April 2014 when he did not depart and instead overstayed, and was arrested by police on 21 April 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Mali or Nigeria he would be harmed or killed by some shrine people/villagers from his home village in Mali for refusing to become the high priest of their shrine.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bamako, Mali, West Africa where his father was the high priest of the shrine in his home village, and after his father passed away when the Applicant was only 5 years old and was too small to succeed to his father’s position as was the tradition of the village shrine, but was expected to do so upon reaching his age of 25.

3.Meanwhile in 1996 the Applicant’s mother moved the family to neighboring Anambra State of Nigeria where the Applicant completed his education, and in 2010 he became a Christian under his mother’s influence.

4.Later in the same year the Applicant returned to Mali to visit his home village, and was received by the village head who reminded him to take over his father’s former duty as the high priest of the village shrine, but when the Applicant refused and revealed that he had become a Christian, the village head became furious and together with other villagers attacked him with wooden sticks and then tied him up to stop him from leaving the village, but after a few days the Applicant managed to make his escape and left Mali to return to Nigeria.

5.Shortly thereafter some of the shrine people/villagers from his home village in Mali came to his mother’s home in Nigeria to demand that the Applicant should return to Mali to succeed his father’s former post as the village’s high priest, and when the Applicant refused, those villagers warned him that there would be serious consequences.

6.Thereafter and to avoid such threats, the Applicant moved out of his mother’s home to stay in his aunt’s place in another part of Anambra State where he participated in his aunt’s farming business, during which his mother had warned him to be careful as those shrine people/villagers had continued to come looking for him. 

7.On 30 March 2014 the Applicant arrived in Hong Kong on a business trip, during which he was told by a friend from Mali that those shrine people/villagers had murdered his uncle due to his refusal of their demand, and warned him not to return to Mali or Nigeria, and as the Applicant became fearful for his life, he therefore overstayed in Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested by police in 2016 for drugs trafficking, for which he was subsequently convicted and sentenced to prison for 13 years and 4 months. 

9.By a Notice of Decision dated 25 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those shrine people/villagers from his home village in Mali upon his return to Mali or Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to be their high priest, that in any event it was a private and personal dispute between them only without any official involvement that state or police protection from either Mali or Nigeria would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in either Mali or Nigeria with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of either countries away from his home village in large cities where it would be difficult if not impossible for anyone to locate him.

11.On 3 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 February 2024 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 28 March 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those shrine people/villagers from his home village in Mali that caused him to overstay in Hong Kong to seek protection, that even if his account were true that there was no reliable evidence of any real intention of those shrine people/villagers to seriously harm or kill him, and that in any event it was a private personal dispute between them without any official involvement that state or police protection of either Mali or Nigeria would be available to the Applicant upon his return to either countries as well as reasonable internal relocation alternatives for him to move safely to other parts of the either countries away from his home village/district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

13.On 8 August 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge.  

14.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

15.As the last day of the three-month period for him to file his Form 86 fell on 28 June 2024, the Applicant was therefore more than 5 weeks late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of more than 5 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he has been in detention by the Immigration Department after serving his imprisonment for drugs trafficking, and with no legal assistance that he needed more time and efforts to prepare the application on his own which explained the delay with his leave application.

17.The record shows that the Board’s decision was sent to the Applicant’s lawyer from DLS on the same day of 28 March 2024 without being returned through undelivered post, and given the assistance which he could readily obtain from the welfare officers stationed in his detention center, I am unable to see any good or valid reason for his serious delay.      

18.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

19.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

20.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 44 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

21.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mali or Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

22.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

23.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application. 

Dated the 27^th day of March 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