KIEBRE SID MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1963/2019

[2025] HKCFI 2419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1963 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Kiebre Sid Mohamed (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 19 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Burkinabe. He was born on 6 December 1982 in Ivory Coast. He moved to live in Ouagadougou, Burkina Faso when he was about 5 years old. He further moved to Djibo, Burkina Faso when he was about 15 years old. He received about 10 years of education and had about 15 years of work experience.

3.  The Applicant claimed that he was a poultry farmer in Djibo between 2002 and 2017. He was an Islam. In early 2017, he accidentally discovered that his neighbour (“DI”) was a member of a group of Muslim religious jihadists who called themselves the only real Muslims (“Jihadists”). According to the Applicant, the Jihadists had been causing a lot of troubles in the local area and they were involved in illicit activities, including the murder of the local imam and police. DI insisted the Applicant should join the Jihadists.

4.  The Applicant replied he would consider DI’s proposal and left. He made a report at the Djibo police station and the police promised to protect him. The Applicant felt that it would not be safe for him to remain, so he secretly fled from his home the next day. He learnt that armed men had been looking for him earlier. He decided to come to Hong Kong because he could obtain a visa on arrival. After coming to Hong Kong on 29 May 2017, his sister informed him that there was an attack by the Jihadists on the gendarmerie in May 2018.

5.  The Applicant claimed that he was in fear of being harmed or killed by the Jihadists if he were returned to Burkina Faso.

6.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

7.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

8.  On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

9.  In a judicial review, the court does not step into the shoes of the decision makers.

10.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

11.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

12.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

13.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

14.  The Applicant failed to attend the court hearing scheduled for 24 April 2025 despite a notice of hearing dated 28 March 2025 having been sent to him and not being returned. I noted that the Applicant had responded to an earlier letter dated 21 March 2025 sent by the court to him at the same address. It showed that letter sent to that address could reach the Applicant. As such, I decided to deal with this application for leave for judicial review of the Board’s Decision according to papers placed before the court.

15.  In §§40-42 and 44 of the Board’s Decision, the Board identified a number of significant discrepancies in the Applicant’s accounts, given at different times, of the events which he said caused him to leave Burkina Faso. The Board was not satisfied that the Applicant provided adequate or plausible explanations.

16.  The Board found that the whole account of the Applicant’s claim was not credible. It did not accept his claim that his neighbour, DI, was a Jihadist or that he faced risks of any kind from the Jihadists in Burkina Faso.

17.  The Board further found that even if the Applicant’s claim were accepted to be true, he could safely relocate to Ouagadougou where some of his family members resided. The Board found that it would not be unduly harsh to expect him to relocate.

18.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how the Board took into account irrelevant matters or failed to take into account relevant matters.

19.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

20.  In §§50-71 of the Board’s Decision, the Board considered the Claim under each of the grounds under the USM. For reasons stated in §§53-54 of the Board’s Decision, the Board was not satisfied that the Applicant had a well-founded fear of persecution if he was removed to Burkina Faso.

21.  For reasons stated in §§59-61 of the Board’s Decision, the Board was not satisfied that there were substantial grounds for believing that the Applicant would be in danger of torture as defined in section 37U(1) of the Ordinance if he was removed or surrendered to Burkina Faso.

22.  For reasons stated in §§65-66 of the Board’s Decision, the Board was not satisfied that there were substantial grounds or strong grounds for believing that there was a real risk that the Applicant would be subjected to the BOR 3 risk in Burkina Faso for reasons claimed.

23.  For reasons stated in §§69-70 of the Board’s Decision, the Board was not satisfied that there were substantial grounds for believing that there was a real risk that the Applicant would be arbitrarily deprived of life in violation of BOR 2 if he returned to Burkina Faso.

24.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

25.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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