SADDI SOULEYMANE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2331/2019

[2024] HKCFI 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2331 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 May 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 29 April 2024.

The applicant

3.  The applicant, aged 43, is a national of Niger. He last entered Hong Kong as a visitor on 30 July 2015 and overstayed since 14 August 2015. The applicant was arrested by the police on 18 August 2015 for overstaying and he made a non-refoulement claim on 3 September 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the business partner of his father (“Musa’) because of a money dispute.

4.  According to the applicant, when he was a child, his father started a partnership business with Musa. The applicant joined the company and worked as a marketing manger after he finished his studies. In or around 2008, Musa accused the applicant’s father of stealing a large sum of money from the business. A month later, while the applicant was working in the shop with his father, Musa came to the shop, threatening his father that he would close the shop and took all the goods if he failed to return the money. A few months thereafter, the applicant’s father was attacked by three men with kitchen knives at a parking lot (“the parking lot assault”). His father sustained serious injuries, with his right hand deeply cut. He immediately went home and summoned a doctor to treat his wound. His father reported the assault at a police station the next morning, but no one was arrested eventually.

5.  A week later, the applicant’s father met one of the attackers on the street, who reiterated that he should return the money to Musa. Since then, the applicant’s father had been receiving threatening calls and visits from Musa regularly, demanding the return of money. Despite the threats, his father did not reach out to the police given that there were no fruitful outcome from their investigation on the parking lot assault. In or around 2014, while the applicant was at home with his parents, a group of more than four gangsters broke in. The applicant immediately hid himself in the kitchen, while his father was attacked with knives and hammers. The gangsters also threatened the applicant’s father that they would kill him the next time if he failed to return the money. The applicant and his mother managed to escape and flee elsewhere away from their hometown.

6.  The applicant later learnt from his mother that his father sustained serious head injuries from the assault and passed away. The applicant did not dare to go back to his hometown because he learnt that he had now become the target of Musa after his father’s death. He started to worry that he would suffer from the same fate as his father. He therefore decided to flee to Hong Kong.

7.  The applicant maintained contact with his mother initially since arriving in Hong Kong. He was informed in 2015 that Musa had taken away his father’s car and all the goods in the shop. The applicant was advised by his mother not to return to Niger for the sake of his safety. He had lost contact with her since 2017.

8.  The applicant was of the view that the police would not be able to protect him because they failed to arrest anyone from the parking lot assault. He also considered internal relocation not viable because Musa would certainly find him due to his vast contacts.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 June 2018 (“the Director’s Decision”).

The Director’s Decision

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

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

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

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

d.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the target of Musa had all along been his father and it was merely the applicant’s speculation based on hearsay that he had become the new target of Musa after this father’s death [20]; (ii) state protection would be available to him upon his return [22]-[26]; (iii) internal relocation would be viable [27]-[31] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [32]-[37], Persecution risk [38]-[42] or Torture risk [43]-[46].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 30 October 2018, the Board conducted an oral hearing. The applicant appeared before the Board and he had given evidence himself. See paragraphs 39 & 40 of the Board’s Decision.

13.  The Board noted inconsistencies in the applicant’s evidence regarding when the problem between Musa and his father began [48]-[51] and the number of gangsters involved in the parking lot assault [52]-[55]. The Board also had concerns on the plausibility of the applicant’s claims about his mother being able to gather money and his passport before they fled despite the gangsters broke into their house and attacked his father [56]-[64] and that Musa only started to attack the applicant’s father in 2014 when the money dispute occurred in 2008 [65]-[68]. In any event, the applicant’s delay in making a non-refoulement claim also adversely affected his credibility [69]-[74].

14.  Based on such findings, the Board found the applicant was not a witness of truth [75]. They did not accept that the applicant’s father was threatened, attacked and then killed by Musa. They also did not accept the applicant’s claimed threats and considered that he would not be at any real risk of harm upon return to Niger [76]-[79].

15.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [80]-[91], BOR 2 and BOR 3 risk [92]-[102] or Persecution risk [103]-[114]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 13 August 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  He was not given a hearing and he was not invited to make written submissions.

(2)  The Board relied on source of information not recognized officially or it was simply hearsay or it was outdated and it came to speculation that it is safe for him to his country.

DISCUSSION

18.  21The 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).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s decision.

20.  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.”

21.  The Board had given its reasons in paragraphs 13-15 above in support of its decisions that the applicant was not a truthful witness and it rejected his evidence on the facts of his claim. It therefore found that the applicant will not be subjected to any of the applicable risks if he returns to his country.

22.  As to the applicant’s grounds in support of his application, it is simply not true that he was not given a hearing. See paragraph 12 above. Ground (2) is only a general assertion without any evidence in support. Both grounds fail.

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

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I 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