OUMAROU FARIWATA ISMAEL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 527/2020

[2025] HKCFI 3851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 527 of 2020

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 the Applicant being absent in open court;

1．  The Form 86 is amended on the Court’s own motion, naming the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative 2^nd Respondent and the Director of Immigration as the Putative Interested Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Niger. He sought to leave to apply for judicial review by a Form 86 dated and filed on 7 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 7 April 2020 (“the Affirmation”). He therein identified the decision as one dated 16 November 2018. However, no document was exhibited to the Affirmation.

2.  The Applicant sought an oral hearing of his application, but did not appear at such. I have hence dealt with his application on the papers.

3.  For context:

a.  The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Niger, he would be harmed or killed by a rebel group named Manou Dayak (“MD”), led by a person of the same name;

b.  The claim was assessed on the grounds of Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 16 November 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which heard the matter on 12 November 2019;

d.  Before the TCAB/NRCPO had handed down its decision, the Applicant filed the Form 86 and Affirmation; and

e.  The TCAB/NRCPO handed down a decision on 14 April 2020 (“TCAB Decision”)[5] which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

4.  The Form 86 named the Director and the TCAB as the putative intended respondents as above, but did not name an interested party. As the Applicant’s appeal/petition was filed to the TCAB/NRCPO, I have therefore amended the Form 86 to identify such as the Putative 2^nd Respondent, and have added the Director as an interested party.

5.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

6.  The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. I have briefly summarised portions thereof above, and will not repeat the contents of the said decision.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

8.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

10.  For the following reasons, there is no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

11.  Firstly, the application for leave for judicial review of the Director’s Decision stands only to be rejected, and I do so, given that once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been put before me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

12.  Secondly, no grounds for judicial review and no relief are set out in the Form 86 or the Affirmation. The Applicant has only said in the Form 86 that he seeks a review of his case “Because until now I can’t go back to my country, my wanted me to be killed when the time I arrived in my Home, MD group’s still active and getting worts(sic) I can’t go back at this time no one can protect me and my family is not in my country yet.” and “I seek Refuge to the Government of HKSAR, for my protection of my staying here in Hong Kong”. The Affirmation makes a similar claim. Further, and given the timing of such documents, these complaints could only realistically relate to a judicial review of the Director’s Decision which, as I have mentioned above, I have dismissed.

13.  Thirdly, as there is no evidence to the contrary the Applicant is presumed to have received a copy of the TCAB Decision on the second working day after it was issued (that is, Thursday 16 April 2020). However, he did not appear at the requested oral hearing. I have hence not been addressed on the implications of the present application having been filed prematurely (i.e. before the TCAB Decision had been made), or on whether there is any appropriate relief that can and should be granted given such. Nor has he advanced any grounds of judicial review in relation to the TCAB Decision, in particular of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test.

14.  However, and given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness. In doing so I have also considered the admissibility and relevance of the claims made in the Form 86 and the Affirmation, in case such might be said to give rise, or be relevant, to any reasonably arguable grounds for judicial review of the TCAB Decision notwithstanding the premature nature of the application.

15.  The TCAB/NRCPO began by setting out the Applicant’s procedural history as well as the nature of the proceedings before it (Paragraphs 1 to 3), followed by relevant principles relating to the four relevant grounds of risk, including as to surrogacy/state involvement, COI, the risk of harm, and the applicable standard of proof (Paragraphs 4 to 30).

16.  The decision-maker then turned to the conduct of the hearing, followed by the Applicant’s background including immigration history, and the Applicant’s case including questioning and responses thereon at the hearing, as well setting out COI excerpts which were brought to the Applicant’s attention at the hearing (Paragraphs 31 to 47). The Applicant’s oral evidence at the hearing was then outlined (Paragraphs 48 to 57).

17.  The TCAB/NRCPO then set outs observations as to credibility and findings. It held, in particular, that “there was simply no evidence to support a finding that the Applicant, if refouled, would be at personal risk from [MD’s] group or from any terrorist group now operating in Niger and nothing to suggest that persons from such a group would go after him in Niamey or anywhere else in the country.” (Paragraphs 58 to 63)

18.  The decision-maker then, unsurprisingly, held that there was no evidence to support the existence of each of the four types of risk, no well-founded fear or persecution at the hands of anyone else, and found that the Applicant faced no real risk of torture, CIDTP, or persecution if refouled. He then dismissed the appeal/petition and confirmed the Director’s Decision (Paragraphs 64 to 78).

19.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, and consequently and inevitably Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

20.  As for the allegations in the Affirmation, I do not see how they are relevant to the issues before me or assist his application for leave, given the findings in and my analysis of the TCAB Decision, when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh, and when in any event the Applicant has not adduced any underlying evidence to support such submissions/bare allegations.

Conclusion

21.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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