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HCAL 2666/2019
[2025] HKCFI 3021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2666 of 2019
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BETWEEN
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Adamou Rabiou |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 12 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 September 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 December 2018 (the “Notice”), refusing his non-refoulement application.
2. In the Form 86, he named the Director as the putative respondent. As the decision sought to be reviewed was made by the Board, the Board should be the proper proposed respondent and the Director should be the proposed interested party. Leave is hence given to amend his Form 86 to the above effect.
3. The Applicant had requested an oral hearing. His address as stated in his Form 86 filed on 12 September 2019 is at Temple Street. He never informed the Court of any change of address. As that address was provided by the Applicant five years ago and may no longer valid, the Court obtained his up-to-date address in Nathan Road from the Immigration Department. A hearing was scheduled and Notice of hearing was sent to the Applicant at his address in Temple Street and in Nathan Road. The notices have not been returned through the post. There is nothing to suggest that he had not received the notice of hearing. On the day before the hearing, a court staff attempted to contact him by telephone to remind him of the hearing, but the call was not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice. He did not appear at the hearing. He is deemed to have waived his right to make oral submissions at the hearing. According, the Court determined his leave application on paper.
Background
4. The Applicant is a Nigerien national. He last arrived in Hong Kong on 10 October 2015 and overstayed since 25 October 2015. He surrendered to the Immigration Department on 26 October 2015 and made a non-refoulement claim on 28 December 2015. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Niger, he will be harmed or killed by members of the Black Axe Cult (the “Cult”) because he refused to take part in their illegal activities.
6. The Applicant, now aged 55, was born in Saran, Maradi Region, Niger. He is married with two children. His parents are deceased. His wife, children and two siblings are living in Niger. He had received formal education for eight years. He started a business selling shoes and handbags in Maradi in 2009.
7. The Applicant claimed that he became a member of the Cult in 2011 by taking an oath of secrecy around a bon fire, putting on fraternity clothes, signing on a membership scroll, and providing his thumbprint in blood. The leaders of the Cult selected members to participate in illegal activities. In 2012, he was selected to take part in a fight with another group. He refused. The leaders scolded at him with foul language and blamed him for disobedience, but they did not harm him. Between 2012 and 2014, he was kept being chosen for the illegal operations, and he refused on each of the occasions. Apart from scolding at him repeatedly, the leaders threatened to kill him, if he failed to comply with their demands.
8. One midnight in August 2014, more than 30 people from the Cult armed with knives and choppers broke into his home and demanded him to join the operation. He insisted not to participate in any violent activity. The Cult members were enraged and assaulted him. He fainted eventually. Thinking he was dead, the Cult members left. He was hospitalised for one month and two weeks.
9. Upon discharge from hospital, he stayed inside his home most of the time because he did not want the Cult to know that he was still alive. He did not report the assault to the police, as he believed the Cult had connection with the police and he worried that would aggravate his problem with the Cult.
10. Between 2014 and 2015, he travelled to some African countries. He returned to Niger every time after he travelled.
11. In July 2015, people from the Cult learnt that he was alive. They went to his home with knives and choppers. He saw them through the window and immediately escaped through the back door of his house to his uncle’s home in the same village. To avoid the Cult, he stayed at his uncle’s place until his departure from Niger on 9 October 2015, during which time he did not encounter any attack.
12. He learnt from his wife and brother that the people from the Cult still went to his house to look for him from time to time. They demanded his wife and brother to disclose his whereabouts, and threatened to kill him if they saw him in Niger.
13. The Applicant claims that state protection is not available because the Cult is connected with the police. He does not believe internal relocation viable, because the Cult could locate him throughout the country with its powerful network and connections with the police.
The finding of the Board
14. The Applicant’s statements to the Director were extremely brief and are almost devoid of detail. He testified before the Board. The Board found he was not a witness of truth and that there was no area of his evidence which was not affected by serious and material credibility problems.
15. The Board observed that the Applicant could not tell what his date of birth was. He claimed he was 41 years of age and was born in 1971. This information is incoherent and inconsistent with his earlier evidence. If he was born in 1971, he would be 48 years old at the time of the hearing. When confronted, he told the Board that he had forgotten.
16. He submitted two claim forms. In the first one, he claimed to be Nigerian. In the second one, he claimed to be from Niger where he had attended eight years of primary education. He blamed his representatives for the error and maintained that what he asserted in the second claim form was to correct a spelling mistake in the first claim form.
17. More importantly, he speaks English with no trace of French accent. He even said he did not speak French at all. But, according to the country of origin information (“COI”), the language of instruction in primary schools in Niger had been French until recently. His language profile was seriously inconsistent with his case that he claimed to have spent eight years in primary school in Maradi in Niger. Furthermore, the Applicant could not say anything coherent about how, where or when he learnt English. He variously claimed to have learnt English in China, from his friends, in school and by picking it up on the street. When these claims were examined, they collapsed completely. Thus, it was never clear where he could have learnt English.
18. When pressed about how he could have lived his whole life in Maradi and running a shop selling to locals and could not speak French, he had nothing to say. Moreover, when asked to describe or state some basic matters: (1) his schooling, including the language of instruction, the name and address of the school and its location in Maradi; (2) where in Maradi he had been born or brought up; (3) the major landmarks or buildings; (4) the address of his shop and his own home; and (5) Niger’s currency, national flag and governance, the Applicant could not answer any of these questions. Hence, the Board found his testimony deeply suspicious and very troubling, which led it to have grave doubts as to his links to Maradi and Niger.
19. His links to the Cult in Niger were central to his claim, but he was entirely unable to describe his links to it, how those links came about, and to set out the history of his alleged difficulties in Niger, even in the most vague and superficial fashion. The Board found that the Applicant’s testimony was so incoherent, garbled, vague, superficial, evasive and contrary to reliable country of origin information about Niger. The Board had “no doubt whatsoever that he is not from Niger and that his claim which is founded on his experience in Niger could be given no credence whatsoever. The Board found the Applicant had no connection whatsoever with Niger and may never even have visited that country. It concluded that no credence could be given to any of his claims.
20. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Niger. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered.
Legal principles applicable to judicial review
21. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
22. The Applicant did not advance any grounds of judicial review in his Form 86 nor his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability and gave reasons for its finding. It found the Applicant had no connection whatever with Niger from where his claimed fear arose. It gave full reasons for its finding. That is a finding of fact solely for the Board. On that finding, it further found that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
24. For the above reasons, leave is granted to amend the Form 86, but the leave application as amended is refused.
Dated the 16th day of July 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 16/07/2025
Adamou Rabiou
Applicant’s ref. no: |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15158/19/1/31/NR28
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4125/18 (Formerly RBCZ 10492/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383
[5] [2018] HKCA 524 at [14(1)]
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