KABA ABDOUL KARIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 17 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 30 October 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 10 December 2019.

2.  The Applicant requested for a hearing of this application but he was absent at the hearing.  I shall deal with this application on paper.

Background

3.  The Applicant is a national of Guinea.  He seeks non-refoulement protection on the basis that he would be harmed or killed by the Guinean military if he were to return.  The Applicant was a member of a political party which was opposing the government.  In 2009 he took part in a protest. The military arrived and fired tear-gas and ammunition at the demonstrators. The Applicant saw some soldiers raping female demonstrators and the Applicant took a video using his phone (although it was lost when he was running away from the scene).  A solider fired several shots at the Applicant but did not hit him.  There was no problem faced by the Applicant until 2019 when he encountered a stranger who asked whether the Applicant took part in the 2009 protest, and the Applicant answered in the negative.  The stranger then left with any further conversation.  The Applicant also heard that some demonstrators had been killed.  The Applicant feared that the stranger was connected to the military and that his life might be in danger.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In the Form 86 the Applicant complained that the TCAB Decision was “substantially unfair”.  In his affirmation in support he also asserted that the TCAB Decision “was not made correctly”.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-5, 8-9, 24-61] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [10-23] and properly considering Country of Origin information [24, 70], the Applicant’s allegations were insufficient to make out any of the applicable grounds [62-84].  In particular, the TCAB found certain key aspects of the Applicant’s case to be incredible and “fanciful”, and his belief that he would be harmed by the military was “unrealistic” and “speculative in the extreme” [65, 68].  These were conclusions that the TCAB was fully entitled to reach, and following therefrom there was no factual or evidential basis to support the Applicant’s claims [73]. 

9.  Indeed, the TCAB recorded the Applicant’s concessions that there was no problem at all for 10 years after the protest [72], and that his fear was based solely on his own speculation [52].

10.  For these reasons, I take the view that the grounds advanced by the Applicant in the Form 86 and in his affirmation are not made out.  There was nothing unfair or incorrect as the Applicant contends.

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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