MOHAMED HUSSEIN MOHAMED alias MOHAMED HUSSIEN MOHAMED v. TORTURE CLAIMS APPEAL BOARD

HCAL 1359/2019

[2025] HKCFI 3783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1359 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 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 30-year-old national of Somalia who arrived in Hong Kong on 22 April 2012 as a visitor, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to Somalia he would be harmed or killed by the members of the majority Hawiye clan and/or the Al-Shabaab for being Midgan, a minority caste in Somalia. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant identified himself as being born to a family of the caste of Midgan, a minority group in Somalia and raised in Xamar Bile, Mogadishu, Somalia. The Applicant’s family was subject to frequent oppression and discrimination due to their minority ethnicity from the Hawiye people. While the Applicant himself suffered from discrimination at school, his father who ran a garment business in the local district was also oppressed by the Hawiye people.

3.  Some time in 2008 or 2009, people from the Hawiye clan came to the Applicant’s father’s garment shop and tried to extort money, and when he refused, they locked his father inside his shop and burned it down but was saved by his friend who ran a neighbouring shop. The Applicant was not at the shop at the time and did not suffer any harm.

4.  In an attempt to avoid further harassments from the Hawiye people, the Applicant was sent by his parents to live with his half brother who was living in Kenya. Due to their finances his parents could not afford to accompany him and instead they hired an agent to travel with the Applicant.

5.  In October 2010, the Applicant’s bus traveling to Kenya was intercepted by the Al-Shabaab members who abducted him and the agent amongst a few other people. The Applicant was accused of fleeing to a non-Muslim country and was detained beat and tortured for 10 days before finally being released. He sought help immediately in a nearby household who then sent him back to his parents in his home village and was taken to the hospital for medical treatment.

6.  The Applicant continued to live in his home village until March 2012 when his 8 year-old sister was kidnapped by the same Hawiye people who burned down his father’s shop, and only a few weeks after his sister was found, some Hawiye people with their faces covered broke down their house door at night and proceeded to shoot his twin brother and his mother with firearms, and then took the Applicant and his father away in a car. About 30 minutes later the Applicant jumped out of the car and lost consciousness. When he later returned home, he learned that his twin brother died from the gunshot and his father was held ransom.

7.  With the help of an agent arranged by his mother, the Applicant departed Somalia and arrived in Hong Kong on 21 April 2012. However, his passport was taken by the agent before boarding the plane who was never seen again and therefore he was refused entry into Hong Kong and was detained. After investigation by the Immigration Department he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 8 February 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”).

9.  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 Hawiye people and/or the Al-Shabaab members upon his return to Somalia as low due to the low intensity and frequency of past ill-treatment from them, that after considering relevant COI that the Applicant did not belong to the minority Midgan group that was targeted or marginalized as he claimed, that his father’s business did not match occupational profile and social status of Midgan, that his evidence regarding the claimed violent encounters with the Hawiye people and Al-Shabaab members were inconsistent exaggerated and implausible, that there is no evidence of any real intention of the Hawiye people and/or the Al-Shabaab members to have any continuous adverse interest in pursuing him or to seriously harm or kill him, that in any event these were private personal disputes between them without 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 Somalia with a large population of 11 million people spread across a vast territory of more than 637,657 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Beley Weyne or other places in Mogadishu other than Xamar Bile where it would be difficult if not impossible for anyone to locate him.

10.  On 14 February 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 8 November 2018 with his lawyer from DLS and an interpreter before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 March 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the volatile general situation in Somalia and Mogadishu, but found numerous material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the majority Hawiye people and/or the Al-Shabaab members that it rejected his account of events occurred prior to his departure of his home country, that there was no evidence that showed that the Applicant was continuously and specifically targeted or pursued by the Al-Shabaab, that relevant COI suggested that the Al-Shabaab has been driven out of the Applicant’s home town where situation has improved since his departure, and that it concluded that he had failed to establish that he has any well-founded fear of being subjected to torture or ill-treatment or persecution or that he would face any genuine and substantial risk of such harm upon his return to Somalia that his claim for non-refoulement protection failed on all the applicable grounds.

12.  On 20 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he wants to apply for judicial review but without putting forth any proper ground for his intended challenge. As such, 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 for his intended challenge.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 - 160 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 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.

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

16.  In the premises, and 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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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