RE TRAORE ALI

CACV 245/2017

[2018] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2017

(ON APPEAL FROM HCAL NO 64 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 27 October 2017 refusing leave to the applicant to apply for judicial review. The applicant is a national of Mali, West Africa. He came to Hong Kong on about 8 September 2012 with a visa allowing him to stay until 22 September 2012. He did not leave Hong Kong upon the expiry of his visa, hence overstayed illegally. He surrendered to the Immigration Department on 24 September 2012. He lodged a non-refoulement claim on 15 November 2012. According to the applicant, he took part in the counter-coup against the military coup led by Captain Sanogo. It was feared that, because of his participation of the counter-coup, the captain’s supporters and the current Malian Government would seek revenge against him and he would be tortured or seriously harmed if he returned to Mali.

2.  The Director of Immigration decided against the claim on 30 September 2015.  The Director opined that the applicant’s assertion was vague and his fear for ill-treatment was not substantiated.  The Director also took into account of the relevant country of origin information (“COI”) about the current Malian Government and was of the view that the Government had undergone reforms and had taken measures to investigate into the crime committed by Captain Sanogo’s coup.  Finally, the Director considered that internal reallocation was a viable and reasonable alternative.  In the decision, the Director also assessed the applicant’s claim with reference to the BOR3 Risk, Persecution Risk and Torture Risk.  By the Further Decision dated 8 November 2016, the Director also assessed the BOR2 Risk and remained his decision against the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board.  After hearing the appeal on 27 October 2016 and 25 November 2016, the Board dismissed the applicant’s appeal on 15 February 2017.

4.  The applicant sought leave to apply for judicial review of the Board’s decision.  The Form 86 filed by the applicant on 3 March 2017 did not contain any grounds for seeking relief.  In his affirmation of 3 March 2017, the applicant, while exhibiting over 500 pages of documents thereto, simply deposed as follows:

“1. to chal[l]enge the decision of the appeal b[oar]d;

2. to provid[e] f[ur]ther evidence in support of my case;

3. to ask for reconsideration regarding insecurity of Mali;

4. to chal[l]enge the USM Appeal

5. and attach document marked as exhibit (a)”

5.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, she gave the following reasons in refusing leave at [14] to [17] of the CALL-1 Form:

“14. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaint is against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

15. The applicant essentially submits in his affirmation that the adjudicator does not give sufficient weight to the applicant’s evidence that his life is at risk and in danger if refouled. The applicant does seek to introduce facts not before the Director or the adjudicator which is not appropriate in an application of this nature. I found the adjudicator did properly consider and give due weight to all the evidence and material he referred to and relied on.

16. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17. In my judgment, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  The applicant did not advance any grounds of appeal in his Notice of Appeal of 7 November 2017.  Nor did he lodge any written submission in support of his appeal.

7.  By his letter dated 19 November 2017, the applicant requested an oral hearing in the appeal and considered that the appeal should be heard by 3 judges.

8.  We heard the appeal on 9 February 2018.

9.  Having considered the materials placed before us, we found that the judge’s observations are obviously correct.

10.  After reviewing materials placed before us, we can find no error of law or procedure undertaken before the Board, nor is there any reasonably arguable basis to challenge the fairness of the process.

11.  From the decision of the Board, it is clear to us that the adjudicator was apprised of the current situation in Mali.  He reviewed the COI relied upon by the Director, as well as the COI relied upon by the applicant.  He also took into account of an article found on the internet and the overview of the political events in Mali as appeared in World Factbook.  Having considered these materials, the adjudicator came to the view that the Malian Government was not making any effort to proceed against persons responsible for the counter-coup.  Even the main counter-coup force (the “Red Berets”, of which the applicant admitted not to be a member) was released and there was no evidence of any proceedings being taken against them.  The adjudicator found no evidence that the Malian Government, or anyone else, was going after any person involved in the counter-coup.  The adjudicator concluded that the applicant was not a particular target and would not be worse off than his countryman if he returned.  It is clear that the decision made by the Board was a well-informed one and there is no reasonably arguable basis to challenge the rationality of the decision.

12.  Therefore, it is not possible for the applicant to assert that the adjudicator’s decision was Wednesbury irrational.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board, the court should not usurp the role of the Board.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

13.  Given that the intended judicial review is to challenge the decision of the adjudicator, one should focus on facts that were before the adjudicator. Further, even if one were to take account the new materials now put forward by the applicant, we cannot see how such materials could assist him in showing that the assessment by the adjudicator at [68] to [74] of the decision of the Board was wrong,

“ 68. Maybe the deposed Sanogo still has sympathisers in the current government. Perhaps that is why the case against him is not going ahead. However, that does not mean that he is now a power behind the scenes, directing operations against those he might have sought to punish when he was himself in power.

69. There is certainly no evidence that the Mali Government, or anyone else, is now going after other persons involved, such as the Appellant. If they released the remaining Red Berets, who were seen as the real culprits of the counter-coup, they are hardly likely to go after irregular hangers-on.

70. If anyone tried to go after such persons it would not be easy to identify them, given the informal nature of the irregular mercenary group and its record-keeping.

71. I cannot see that there is any real chance that the Appellant would, if returned, be sought out and harmed because of his minor and peripheral role in the counter-coup. There is no evidence of any personal risk to him now, in 2016.

72. Mali is, unfortunately, a dangerous place even now. The Human Rights Watch World Report – Mali 2016 shows a worsening situation. So does the US State Department documents. In particular, terrorist attacks continue particular in the north.

73. Mr Haddon-Cave says that one issue is whether Mali is generally a safe place to return to and whether the government there can provide safety for the Appellant in the country. In connection with the alleged threat from Government forces loyal to Sanogo, that is an issue and I have dealt with it.

74. If, however, it is suggested that Mali is not generally a safe place to return to because of the volatile political and terrorist situation, and the Appellant should be granted non-refoulement protection on that account, the answer is that that situation does not bring with it any personal threat to the Appellant.  The Government is doing its best to protect its citizens from terrorism particularly in the north of the country.  The Appellant is not a particular target.  If returned would be no worse off than his countrymen.”

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  The appeal is dismissed accordingly.