Abdirahman Aboukar Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 437/2020

[2025] HKCFI 2119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 437 of 2020

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 17 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 February 2017 and 23 December 2019 (“Board’s 1^st and 2^nd Decisions”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 24 July 2015 and 19 December 2017 (“Director’s 1^st and 2^nd Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s 1^st and 2^nd Decisions can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000437_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000437_2020_files/2nd_Board's_Decision.pdf

2.In his Form 86, the applicant did not name any party as the proposed respondent and named himself as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim is that he would be harmed or killed by members of the Habar Gedir clan due to a land dispute, and he fears degrading treatment from other clans in Somalia because he belongs to the minority and inferior Gabooye clan. He fears that his girlfriend or her family will harm him after he had left her. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.Before the hearing on 13 May 2025, the court received a letter dated 25 March 2025 informing the Court that the applicant was granted stay in Hong Kong on 11 February 2022. In other words, the applicant is currently a Hong Kong resident. Thus, his non-refoulement claim may now be moot.

5.A notice of hearing with a reminder[1] of the consequence of absence dated 16 April 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Several phone calls were made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

6.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Disposition

7.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.In the present case, the Board rejected the claim in the Board’s 1^st Decision, which covered torture risk[2], BOR 3 risk[3] and persecution risk[4]; because the Board found that the applicant was dishonest and unreliable due to the inconsistencies between his oral testimony at the Board hearing and his prior answers given at the screening interview with the Director. The Board drew his attention to some of these inconsistencies but he was unable to provide a satisfactory explanation. In any event, the Board also found that the applicant never suffered any severe pain or physical or mental suffering which reaches the minimum level of severity. The Board thus found that there was no real risk of harm. The Board also found that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.As for the Board’s 2^nd Decision, which covered BOR 2 risk[5], the Board after conducting a separate hearing and receiving separate submissions from the applicant on BOR 2 risk, rejected the claim because the applicant’s submissions and evidence did not indicate that there would be any threat to his life.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Decisions of the Board. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Orders

11.The Form 86 is amended on the court’s own motion.

12.The Leave Application be dismissed.

Dated the 26^th day of May 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