DIAWARA ANSOUMANE ALIAS ONUOHA DICKSON EMEH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2815/2019

[2021] HKCFI 2860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2815 of 2019

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old man of Guinean and Nigerian dual nationality who last arrived in Hong Kong on 17 January 2010 as a visitor but was arrested at the airport for drug trafficking for which he was later convicted and sentenced to prison for 14 years, and whilst in prison he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Guinea or Nigeria he would be harmed or killed by those gangsters who set him up for his drug trafficking. 

2.  The Applicant was born in Conakry, Guinea to a Guinean mother and a Nigerian father and was raised in Nigeria where he moved with his family at the age of 6.  After leaving school he got married, raised a family of one daughter, and ran his clothing business in his home district in Nigeria by importing stocks from Hong Kong with frequent business trips.

3.  In about late 2009 two Nigerians whom he had met in Malaysia offered to pay him US$1,000 plus all his travelling expenses to bring something for them to Hong Kong to which he readily accepted, and so he travelled to Hong Kong on 17 January 2010 when he was arrested for trafficking in dangerous drugs given to him by those Nigerians, and for which he was subsequently convicted and sentenced to prison for 14 years, and whilst in prison in April 2018 he raised his non-refoulement claim as he feared of being harmed or killed by those Nigerians for losing their drugs upon his discharge from prison and refoule to Nigeria or Guinea, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

4.  By a Notice of Decision dated 20 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap  383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Nigerian gangsters upon his return to Nigeria or Guinea as low due to the absence of any past ill-treatment from them, that there is no evidence of any such risk other than hearsay or his own speculation of any such harm from them in all these years, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria or Guinea with large population spread across a vast territory of either country that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of either countries away from his home district in large cities where it would be difficult if not impossible for him to be located.

6.  On 2 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 16 August 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found no evidence of any risk of harm from those Nigerians against the Applicant other than hearsays or his own speculations or any reason why they would still have any adverse interest in him after all these years as it would be plain to them that those drugs had been confiscated by the police and for which the Applicant had been sentenced to prison for years, nor is there any evidence of any risk of harm from anyone else upon his return to either Guinea or Nigeria that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds. 

8.  On 25 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and by a letter dated 13 May 2020 he put forth the following grounds for his intended challenge:

(1)  that the Board reached the decision wrongly in assessing his non-refoulement claim as not reasonable or fair;

(2)  that the Board failed to appreciate or give sufficient importance or weight to the presence of State acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim as he was tortured at the behest of the state law enforcement agencies that the state should be held liable to him by cause of the state and its public officials failed to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience or to consider or give enough weight to those listed relevant COI which supported his aversions that the police in the his home country would not be able to protect in the consideration of his claim;

(4)  that the Board’s failure to take into account his argument that corruption and incompetency are still very serious problems in his home country in its decision is a clear case of unfair attitude shown by the Board which is in itself enough to render the decision void;

(5)  that the Board failed to attain high standard of fairness required by the Wednesbury test in its decision which should be considered unreasonable in the scope of public law;

(6)  that the Adjudicator was procedurally unfair or improper when assessing whether to accept the explanations provided by the Applicant and unreasonably required him to respond to questions, and also failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country which have made persecution effectively persecution by the State; and

(7)  that the Board’s decision in dismissing the Applicant’s appeal/petition based on findings which ought to allow the appeal/petition and hence was irrational.    

9.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any relevancy to his own case that appear to have been copied from applications of other applicants of similar non-refoulement claim but of wholly different facts, and in any event there are no particulars or specifics or elaborations provided by eth Applicant as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply high standards of fairness in assessing his claim, or in what way was State acquiescence relevant to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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. 

11.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any risk of harm from anyone against him for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.    

12.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria or Guinea, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 

14.  Furthermore, the Applicant recently wrote to request to withdraw his application as he just wants to return to his home country as soon as possible.

15.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country as soon as possible, I therefore accede to his request and accordingly dismiss his leave application.

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