DIALLO MAMADOU BAILO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1159/2018

[2021] HKCFI 3779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1159 of 2018

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.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 November 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.     The Applicant is a 46-year-old national of Guinea who arrived in Hong Kong on 1 June 2010 as a visitor with permission to remain extended to 22 June 2010 when he did not depart and instead overstayed and was arrested by police more than one year later on 21 August 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Guinea he would be harmed or killed by the local Muslims as he is a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Guinea as a Catholic by his parents, and after they passed away when he was about to enter primary school, he was then raised by a Christian family, but as they were poor, he would spend most of his time staying in the local Catholic church where he witnessed many incidents of Christians being attacked by the local Muslim population, and during one of such occasions when he was a primary student that he was also attacked, and while he managed to escape without serious injuries, he had since always lived in fear for his safety in Guinea. 

3.  In 2010 he was told by a friend that Christians are able to live safely in Hong Kong, and so in May 2010 he departed Guinea for Hong Kong where he overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 17 August 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.  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 the local Muslims upon his return to Guinea as low due to the absence of or low intensity and frequency of past ill-treatment from them, that in the absence of 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 there are laws and reforms carried out by the Guinean government to protect the citizens from discriminations based on racial and religious reasons as well as reasonable internal relocation alternatives permitted in Guinea with a large population of 11 million people spread across a vast territory of more than 245,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other part of Guinea away from his home district in large cities where it would be difficult if not impossible for those local Muslims to locate him.

6.  On 25 May 2017 the Director again in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 12 June 2017 rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Pakistan.

7.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of appeal which was filed on 28 August 2015, and for which he attended an oral hearing on 26 September 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found the Applicant’s evidence of his claim of being a Catholic who had witnessed violence committed by the local Muslims against Christians in his home district vague and general without any details or of any basic knowledge of his claimed religion, that there is no reliable evidence of any threats or ill-treatments being made against him prior to his departure of Guinea, and that relevant COI show that the Guinean government has implemented reforms to protect citizens from discrimination based on race or religion and with state/police protection available to the Applicant upon his return to Guinea without any risk of facing any harm of the proscribed forms that his claim non-refoulement protection failed on all applicable grounds.  

9.  On 21 June 2018 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, and in his supporting affirmation of the same date he just stated that he is not satisfied with the decision without putting forth any proper ground for his intended challenge, nor did he attend the hearing of his application without any explanation.

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be filed.

11.  As the last day of the three-month period for him to file his Form 86 fell on 16 February 2018, the Applicant was therefore more than 4 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay or more than 4 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation or to attend the hearing to do so, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either.

14.  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.

15.  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 42 – 56 of its decision on the basis of the materials and information available in view of his failure to attend the hearing without any explanation or to identify any error of law or procedural unfairness in his process before the Board or in its decision, I do not find any reasonably arguable basis to challenge the findings of the Board.  

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

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave 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