ADNAN DERIA SUBER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2565/2019

[2025] HKCFI 1051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2565 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 August 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision dismissing his subsequent claim (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 3 March 2025.

The applicant

3.  The applicant, aged 29, is a national of Somalia. He came to Hong Kong on 3 December 2013, but was refused permission to land. He lodged a non-refoulement claim on 21 March 2014. His application was deemed to withdraw because he failed to return the completed Notice of Claim Form. He then applied to re-open his claim through his private lawyer. The application was refused. On appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), the matter was remitted to the Director. On 9 February 2019, he wrote to the Immigration Department to withdraw his claim. He was removed on 26 February 2019. On 27 February 2019, through his private lawyer, he applied to make a subsequent claim. Since then, he was detained in the Castle Peak Bay Immigration Centre (CIC).

4.  The basis of his subsequent claim is that, if refouled, he will be harmed or killed by the family members of the Hawiye, because the son of this family died in an accident at the site where he worked as a worker and the applicant’s father was the contractor. Besides, he is in fear of the Al Shabaab and the Somali government would not be able to protect him.

5.  According to the applicant, he came from a minority Ashraf clan whereas the Hawiye is the majority clan. His father was a construction site contractor. In mid-2013, some part of the building on the site collapsed and one of the workers was killed. This worker is of the Hawiye clan. The family members of this family held his father liable for the worker’s death. They had caused injury to his father. His father told the mother to take the children to live elsewhere in order to avoid the Hawiye family. He moved with his mother to live in his aunt’s place. The matter was not reported to police as they believed that police would not assist them. Finally, he left Somalia for Hong Kong.

6.  Details of his claim are set out at paragraph 12 of the Notice of Decision dated 30 May 2019 (“the Director’s Decision”).

The Director’s Decision

7.  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.  risk of violation of the right to life under Article 2 of Section 8 of the 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that the risk of being harmed or killed by the Hawiye family or the Al Shabaab militia is assessed to be low; that state protection will be available; and internal relocation will be viable.[23]-[33]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 31 July and 15 August 2019, the Board conducted an oral hearing for his appeal. The applicant and the Director were legally represented.

10.  Having considered the evidence, the Board found that, on the balance of probabilities, and giving the benefit of the doubt to the applicant, it accepted the facts raised by the applicant. However, taking all facts and the circumstances into consideration, it found that the applicant did not face a real risk of Proscribed Harm under any of the applicable risks if he returns to Somali.. [41]-[45], [49], [58], [66] -[69]

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

11.  The applicant has filed Form 86 dated 3 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any valid ground to challenge the Board’s Decision.

DISCUSSION

13.  The 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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

15.  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.”

16.  It is within the province of the Board to evaluate his evidence on the facts of his claim. The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

18.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.