DIALLO IBRAHIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2260/2019

[2024] HKCFI 3394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2260 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 18 November 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 36, is a Guinean. He last entered Hong Kong as a visitor on 27 September 2013 and overstayed since 12 October 2013. The applicant surrendered to the Immigration Department on 21 October 2013 and he made a non-refoulement claim on 2 April 2014. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by the members from the ruling party called Rassemblement du Peuple Guineen (“RPG”) because he was a supporter of the opposition party called Union des Forces Democratiques de Guinee (“UFDG”).

4.  According to the applicant, he became a UFDG supporter in around 2010. On 15 April 2010, while he was having a meeting with other UFDG members, around 20 gendarmes came to the scene and assaulted them (“assault incident”). Although the applicant managed to escape with some bruises on his body, his boutique was vandalised within the same month thereafter (“vandalisation incident”), which he believed was done by RPG members. Feared about his safety, the applicant departed Guinea for Senegal on 10 May 2011, where he stayed for 2 days. Thereafter, he went to China and Thailand. Eventually, he arrived in Hong Kong on 27 September 2013 and had not departed since then.

5.  While he was out of Guinea, he learnt that 15 UFDG members were arrested in March 2012 for participating in a march against RPG. The applicant was of the view that he could not seek protection from the police because they were corrupt and that they only followed the orders of the ruling RPG. He also considered internal relocation not viable because he had no family ties elsewhere and that he also feared to be located as RPG had a thorough network within the country.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 July 2018 (“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 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the misconduct of the 20 gendarmes could not represent the stance of the government [17]; (ii) there was no evidence indicating that the Guinean government was targeting him personally or had any adverse interest against him [18], [24]; (iii) the applicant’s decision to continue participating in UFDG activities in his commune and his failure to seek asylum in Senegal or Thailand were inconsistent with the conduct of someone genuinely in fear [19], [22], [25]; (iv) the applicant’s accusation against the police was merely his bare assertion [20]-[21], (v) the claim about the arrest of UFDG members in March 2012 was merely hearsay [23], (vi) state protection would be available [27]-[29] and (vii) internal relocation would be viable [30]-[31].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 4 February 2019, the Board conducted an oral hearing.

10.  The Board found the credibility of the applicant in issue in light of the evidence he gave about (i) the reason he joined UFDG at 21 instead of 18; (ii) the vandalisation incident and (iii) the provenance of the photographs produced. His decision to remain in Guinea for over 12 months after the vandalisation incident further undermined his claim that he was being targeted for harm by RPG members [30]-[34].

11.  The Board accepted that the applicant as well as his family were UFDG supporters and that he did suffer bruising during the assault incident. However, the Board rejected the happening of the vandalisation incident and did not accept that the photographs produced depicted an event that the applicant was present. In any event, given the applicant’s grass-root participation in UFDG, the Board considered that he only faced a remote or speculative risk of harm from RPG members upon his return to Guinea [36].

12.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [13]-[24], [39]-[47]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

13.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the affirmation in support of his application, the applicant did not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The applicant has not raised any valid ground to challenge the Board’s Decision.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts or its views upon the evidence before it.

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

DISPOSITION

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