SARE YASSIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2307/2019

[2025] HKCFI 445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2307 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

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

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 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 (“the Board”) dated 29 July 2019 (“Board's Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 14 December 2018 (“Director's Decision”) rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named “USM” as the proposed respondent and “TCAB” as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 12 December 2024. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

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

5.  The applicant was a national of Burkina Faso. On 26 February 2017, he arrived in Hong Kong on a visitor visa, and was permitted to stay until 12 March 2017. On 20 March 2017, the applicant surrendered to the Hong Kong Immigration Department after he had overstayed. By written significations dated 2 February and 23 March 2018, 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 the idolatry practicing elders and villagers of the applicant’s village, who opposed the applicant’s Islamic practice.

6.  The applicant was born and raised in a village called Bittou BLG. His father practiced idolatry, the religious practice of the village. However, his mother was a Muslim and the applicant’s family engaged in Islamic practice. After the parents divorced, the applicant and his siblings started to shift to away from the idolatry practice. Since the applicant was the older child, the villagers started to inflict physical abuse at him. On one occasion at the end of 2015, he was attacked and lost consciousness. A Muslim family took care of him, and eventually he went to Ghana, and later left the country when he felt he was still pursued by the villagers.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director found that it was merely a private dispute without any official/state involvement. After having considered the country of origin information reports (“COI”), the Director was satisfied that it was the right of individuals in Burkina Faso to choose their religion, and in any event, 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.

8.  On 11 July 2019, the applicant gave evidence via an interpreter before the Board. The adjudicator for the Board had found several material aspects of the applicant’s evidence incredible. The Board did not accept the applicant’s evidence of having been assaulted by his community for his Islamic faith and practice. Neither did the Board believe that the police of his village would not provide him assistance on the ground that the police also worship idols. All in all, having regard to the COI and his evidence, the Board did not accept that he would be pursued by his paternal family member or the villagers or that he would be unable to live safely in another part of Burkina Faso as his problem appeared to have only been confined to his home area and was not widespread throughout Burkina Faso. The Board concluded that applicant’s appeal failed on all applicable grounds.

Legal principles applicable to judicial review

9.  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

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and the hearing bundle. At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that the Board did not sufficiently appreciate his fear. He kept repeating that he was still very afraid to return back to his city. Since the applicant was acting in person, this court asked him what mistake or error he believed the Board had made. He repeated again that he only wanted to appeal and was afraid. It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to 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.

11.  The Board’s Decision was arrived after examining the applicant’s evidence in detail. It found that the applicant’s account of being pursued for religious reasons was not credible. In any event, the Board also found that COI showed that there was a high degree of religious tolerance in his home country, and that the applicant could reasonably relocate within his country. These are findings of fact, which the court in a judicial review will not interfere with.

12.  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’s evidence was not credible and that the applicant failed to discharge his burden of proving the asserted fears and risks.

13.  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.

Orders

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

15.  The Leave Application be dismissed.

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