ABDOUL KARIM MOUSTAPHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2706/2019

[2025] HKCFI 2326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2706 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Niger and also holds a Nigerian passport who last arrived in Hong Kong on 16 June 2016 as a visitor with permission to remain as such up to 30 June 2016 when he did not depart and instead overstayed, and was arrested by police on 10 August 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Niger he would be harmed or killed by his 2 paternal uncles over their land dispute in his home village and/or by the Islamic terrorist group Boko Haram in Niger and Nigeria due to his religion as a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Goure City, Zinder Region, Niger. After leaving school he ran his own business importing garments from China and selling them in his home district.

3.  In 2005 his father transferred some of his properties and land which he inherited from the grandfather to the Applicant, but as his 2 paternal uncles objected to the transfer as they believed they also had an interest in those properties, which thus led to frequent disputes within the family.

4.  One day in 2005 some armed men came to his home looking for him, but the Applicant managed to flee from the back of his house and went into hiding, and as he suspected that those men were sent by his uncles to kill him due to the property dispute, he reported the matter to the police who then arrested his uncles, but after questioning them for one day the police released them without charge due to lack of evidence to connect them to those men.

5.  Two months later one afternoon the same group of armed men again came to the Applicant’s home, and when they saw him standing outside the house, they started shooting with their pistols, but the Applicant managed to run inside the house and locked the door, and after those men had left, the Applicant again reported the shooting to the police, but no arrests were made, and on his father’s advice the Applicant therefore moved from his home to take shelter in a friend’s place to stay away from his uncles’ threats.

6.  In 2009 the Applicant formed a group of fellow Christians in his neighbourhood to provide protection from attacks by Muslims extremists against their religion, but one day some members of his group had been shot and injured by the Islamic extremists and terrorist group Boko Haram known to attack and kill Christians, and he also subsequently received threatening messages from them, the Applicant decided it was no longer safe to remain in Niger, and so he and his parents moved to neighboring Nigeria in 2010 where they subsequently acquired the rights of residency.

7.  In 2012 the Applicant went to China for his garments business until 2014 when he returned to Nigeria to stay in his parents’ home in the Borno State, but soon some unknown men armed with machetes came looking for him, and as the Applicant was then not in the house, those men attacked his father and grandmother causing them injuries that they were subsequently taken to hospital where his grandmother later died from her injuries.

8.  As the threats against him had persisted, the Applicant therefore again departed Nigeria in early 2015 for China to resume his trading business there, during which he also took many trips to Hong Kong to purchase goods and items for his business.

9.  In 2016 the Applicant noticed that in Nigeria attacks by Boko Haram against Christians in his home state Borno had become more frequent and widespread with indiscriminate killings, and that his parents had on one occasion been abducted by the group for months before they were eventually released unharmed.

10.  As a result of the worsening situation in Nigeria, the Applicant was advised by his parents not to return and to save himself by seeking protection in Hong Kong, and so in his last trip to Hong Kong on 16 June 2016, the Applicant overstayed his permit, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.  By a Notice of Decision dated 26 November 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”).

12.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim given his failure to raise it upon his first trip to Hong Kong in 2014 or in any of his many trips thereafter until 2016 and only upon his arrest by the police for overstaying that he did so that it undermined the credibility of his claim, that even if his claimed fear of harm from his uncles over their land dispute in his home village in Niger were real that the absence of or low intensity and frequency of past ill-treatment from them is indicative of a low future risk upon his return to Niger, and that there is no evidence of any real intention of them to seriously harm or kill him over what was essentially a private land dispute within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to, while there is no evidence that he has ever been threatened or harmed by the Boko Haram either in Niger or Nigeria or that he has ever been so targeted by the terrorist group and that similarly state protection will be available to him upon his return to either Niger and Nigeria as both countries have regarded Boko Haram as an terrorist group, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in both Niger and Nigeria with large populations spread across vast territories that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of either countries away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

13.  On 10 December 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 29 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

14.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted and rejected the credibility of his claimed fears of harm from his uncles or Boko Haram that caused him to overstay in Hong Kong to seek protection, that his total lack of any basic knowledge about his alleged place of birth in Niger or to answer any questions raised by the Adjudicator as to the circumstances leading to his departure or as to the central elements of his claim at all which the Board found to be a very serious negative credibility indicator, which was further undermined by his failure to raise his claim during those years of his many trips to Hong Kong until his arrest by the police in 2016 for overstaying his last trip that the Board concluded that he is not a witness of truth with no credence to be given to any of his claims that his non-refoulement claim for protection failed on all applicable grounds.

15.  On 16 September 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 in his supporting affirmation of the same date in which he just repeated his claim as before and that he just does not want to return to his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

16.  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.

17.  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 21 – 31 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.

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Niger or simply to return to Nigeria where he has never claimed to face any risk of any form, a decision also agreed and 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.

19.  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.

20.  For all 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