ISSA SANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2481/2019

[2025] HKCFI 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2481 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did asked for a hearing. However, he was absent at the hearing on 15 January 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 47, is a national of Niger. He last entered Hong Kong as a visitor on 4 March 2017 and overstayed since 19 March 2017. The applicant surrendered to the Immigration Department on 20 March 2017 and he made a non-refoulement claim on 28 July 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by his uncle due to a land dispute.

5.  According to the applicant, his father inherited a piece of farmland (“the Land”) from his grandfather. In 2006/2007, the applicant became the owner of the Land upon the decease of his father. Between 2012 and 2015, he left his hometown and had even travelled overseas for business purpose. In late 2015, upon the applicant’s return to his hometown, his uncle requested that the Land be transferred to him, for which the applicant refused. Thereafter, frequent quarrels arose between the applicant and his uncle and there were also two occasions when his uncle had threatened to kill him. In mid-2016, four masked men broke into the applicant’s house and assaulted him (“the assault incident”). He managed to escape from the backdoor and ran into another village. The applicant stayed there for less than a year until he departed Niger for Hong Kong via Nigeria in March 2017.

6.  The applicant claimed that he would still be in danger as his uncle was eager to obtain the Land. He was of the view that he could not seek protection from the police because they were corrupt and could easily be bribed by his wealthy uncle. He also considered internal relocation not viable because his uncle could easily locate him with his wealth.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 May 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from the applicant’s uncle indicated a small future risk of harm upon his return to Niger [13]; (ii) it was the applicant’s mere speculation that his uncle was involved in the assault incident and that in any event, there was insufficient evidence to show that his uncle had a real intention to seriously harm or kill him [14]; (iii) the applicant’s delay in leaving his hometown and Niger was inconsistent with the behaviour of someone genuinely in fear [15]; (iv) state protection would be available [16]-[19] and (v) internal relocation would be viable [20]-[21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 17 June 2019, the Board conducted an oral hearing.

11.  The Board found the applicant’s testimony in the hearing was inconsistent with his previous evidence in various aspects including (i) when the problems with his uncle began; (ii) when the assault incident occurred; (iii) whether his uncle was present during the assault incident; (iv) the place he resided in Niger and (v) his mother’s circumstances. The Board also had serious doubts as to whether the applicant’s father was deceased as he had described his father as being retired and having no income in the written signification. Although the applicant asserted that the discrepancies were due to his inability to comprehend the English of the Board member, such claim was not accepted by the Board [47]-[57].

12.  The Board considered that the applicant was not a witness of truth and that his claims were not credible. The Board did not accept his claim that his father was deceased and that there was a land dispute with his uncle for which he was assaulted [58]-[59]. Based on such findings, the Board found the applicant would not face any real risk of harm upon his return to Niger [61] and rejected his claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [12]-[28], [62]-[65].

13.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.