SALIFOU IDDI ABDOULSAMADOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1571/2019

[2024] HKCFI 1184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1571 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 50-year-old national of the West African country The Republic of Niger (“Niger”) who arrived in Hong Kong on 15 December 2014 as a visitor with permission to remain as such up to 29 December 2014 when he did not depart and instead overstayed, and on 5 January 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Niger he would be harmed or killed by his former slave master. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Niamey, Niger where he together with his parents and siblings were slaves owned by a prominent man known as Maidanda Saidou, the Sultan in the region of Dosso, and served in his vast household together with many other slaves and servants who were often subjected to beatings and abuses by the Sultan and his family.

3.  In 2012 the Applicant was assigned by the Sultan to serve in the household of one of his wives, and according to usual practice he was to be castrated first before starting to serve in her household, which thus caused great fear to the Applicant that he fled from Niger to escape to neighbouring Togolese Republic and then to Ghana and other countries in Africa.

4.  In June 2013 the Applicant returned to Niger to see whether his slave master was still looking for him, but as he was still fearful for his safety, he stayed far away from his home town and did not even dare to visit his family, and after staying for a short period he left Niger to return to Ghana.

5.  In 2014 he travelled to Dubai and then to Lome the capital of Togo where he was advised by some fellow Nigeriens to seek asylum in China, and so in December 2014 he travelled to China and later to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 20 November 2017 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his former slave master upon his return to Niger due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his former slave master to harm him or even any evidence that he was being pursued after fleeing from the Sultan’s household and the country or that there would still be any adverse interest in him after all these years, that in any event it was a private personal dispute between him and his former slave master only without any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Niger with a large population of 19 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 20 November 2018 before the Board and without any explanation or response to its subsequent enquiry for his absence, whereupon the Board proceeded to deal with his appeal on paper. On 22 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board doubted the Applicant’s claim as not credible due to material inconsistencies discrepancies and vagueness therein but which he failed to clarify or explain when he failed to attend the scheduled hearing without any explanation, that according to relevant COI that the Sultan in the region of Dosso in Niger by the name of Maidanda Saidou was indeed a prominent person and the Ambassador of Niger to the United Nation in the 1960s which was long time ago that it is not even clear that he is still alive or still occupies the position of Sultan in the Applicant’s home town today or that he would still have any adverse interest in the Applicant after all these years since he left the country, and that in any event even if such risk were real that it arose from a private dispute between the 2 of them without any state or official involvement that state or police protection would be available to the Applicant upon his return to Niger as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 10 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision 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 of appeal to 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.

11.  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.

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

13.  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.

14.  For 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