SOW ABDOURAHIM v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETTION OFFICE

HCAL 1901/2018

[2021] HKCFI 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1901 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 December 2016 (the “Notice”). The application was one and half year out of time.  The Applicant did not request for an oral hearing.  Having considered the papers, the Court considered this was an appropriate case for determination on paper without a hearing.

2.  The decision of the Director is not reviewable by judicial process because there are established statutory procedures of appeal against his decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s decision dated 6 August 2018 (the “Decision”) and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For this reason, the Applicant’s application must be dismissed. 

3.  The Decision of the Board, however, is reviewable by judicial process; but the Applicant is not seeking leave to apply for judicial review of that Decision.  In the interest of justice and for the benefit of the Applicant, the Court went on to consider if there was any merit in an application for leave to apply for judicial review of the Decision.  If there is, leave would be granted to amend the application to one in respect of the Decision.

4.  The Applicant is a Guinean national.  He arrived in Hong Kong on 31 January 2016 and was permitted to stay as a visitor until 14 February 2016.  He over-stayed thereafter.  On 1 March 2016, he surrendered to the Immigration Department.  Upon service on him of a removal order, he lodged an appeal to the Immigration Tribunal.  His appeal was dismissed on 7 July 2016.  Then, on 19 August 2016, he lodged a non-refoulement claim alleging that if returned to Guinea or Nigeria he will be killed or harmed by his uncles and Mermaid God of Oracle (the “Mermaid God”) who intended to take him for the sacrifice ritual in accordance with his father’s will.

5.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice dated 13 December 2016, the Director rejected his claims.  His appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 6 August 2018. 

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

7.  The Applicant’s father was a key member of the Rassemblement du Peuple Guinéen (“RPG”).  In 2010, when Alpha Conde of RPG won the presidential election against the candidate from the opposition party, Union des Forces Démocratiques de Guinée (“UFDG”), the Applicant’s father was appointed as aide to the president. 

8.  On 19 June 2011, the Applicant’s father was killed in a siege of the presidential residence and the Applicant’s father’s residence nearby.  The Applicant made good his escape.  He obtained a Guinean passport and fled to Nigeria where he lived with his mother peacefully for about four and half years.

9.  In early November 2015, the Applicant’s uncles told the Applicant’s mother on the telephone that his father had made an oath to sacrifice the Applicant to Mermaid God in return for his success in political career.  On 6 November 2015, his uncles visited the Applicant’s mother and told her that they were facing problems in their business and politics and their family members had died mysteriously.  They said that the chief priest had told them these happened because Mermaid God was looking for the Applicant to sacrifice.  They urged his mother to allow them to take the Applicant back to Guinea for sacrifice, but his mother refused.

10.  Nine days later, the uncles visited the Applicant’s mother and tried to get hold of the Applicant.  The Applicant escaped.  He later learned that his mother was beheaded.  The Applicant then fled to Lagos on 18 November 2015.

11.  In mid-December 2015, the Applicant happened to run into one of his uncles in the market.  His uncle threatened that the Applicant would not be able to hide from him.  On 29 January 2016, the Applicant fled to Hong Kong.

The finding of the Board

12.  The Board found multiple significant discrepancies between the Applicant’s evidence as stated in the non-refoulement claim form and his previous communications with the Immigration Department which cast serous doubt on his credibility.  In his letter dated 1 April 2016, the Applicant told the Immigration Department that his father, a member of the opposition party, ie UFDG (which he called “VFDG”), was killed by members of RPG who now wanted to kill him.  At his interview on 1 April 2016, he repeated the same story to the immigration officer.  In his notice of appeal against the removal order dated 27 June 2016, the Applicant repeated the same story.  He unequivocally asserted that his father belonged to UFDG; that the leader of his father’s party was antagonising Alpha Conde, the leader of RPG.  A political crises arose when Alpha Conde won the presidential election.  Hence, his mother introduced him to work as a manager with Nathan Gold Ltd.  Then, because his mother was involved in the Boko Haram killings, the board of directors of Nathan Gold Ltd threatened to kill the Applicant and he fled.  The consistent story that emerged from these communications is that the Applicant’s father was a member of the opposition, UFDG; and following its defeat in the presidential election, his father was killed by the ruling party RPG and he was being sought after by RPG for persecution.

13.  It was not until his letter dated 19 August 2016 and later the non-refoulement claim form and screening interview on 12 December 2016, that the present case of threat from his uncles and human sacrifice to Mermaid God emerged.  His story changed with time.  He now alleged that his father was a member of the ruling party RPG and aide to the president and that his feared harm and risk came from his uncle and Mermaid God rather than from political violence.  The Board discussed the discrepancies with the Applicant and rejected his explanation.  While accepting that witchcraft and ritual murders were being practised in Guinea and Nigeria, the Board does not accept there is a consistent pattern of gross, flagrant or mass violation of human rights in Guinea for the purposes of section 37ZI(5) of the Immigration Ordinance.  It did not consider that the Applicant would face a real risk of suffering proscribed harm should he return to Guinea in the reasonably foreseeable future.  There was no factual basis to support the Applicant’s claims for non-refoulement protection on any of the four applicable grounds.

Grounds for judicial review

14.  The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review.  He filed an affirmation dated 11 September 2018 claiming he had serious problems in his home country in that his uncles are going after his life; and that he has married in Hong Kong.

15.  On 14 April 2020, the Applicant submitted to the court his marriage certificate and some photographs taken during the crisis in support of his case.

Disposition

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].  In the absence of any specific grounds of application, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering her application for leave.

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in a judicial review of the Board’s Decision.  It would be a futile exercise to amend the application to one in respect of an application for leave to apply for judicial review of the Decision of the Board.

Conclusion

18.  For the above reasons, leave to apply for judicial review of the Director’s Notice of Decision dated 13 December 2016 was refused.

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

[1]  [2018] HKCA 549

[2]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6]  [2018] HKCA 524 at para 14(1)