BOUGHEZALA HAMAD HOCINE v. TORTURE CLAIMS APPEAL BOARD

HCAL 340/2019

[2023] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 340 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Algeria who last arrived in Hong Kong on 11 March 2011 as a visitor with permission to remain as such up to 25 March 2011 when he did not depart and instead overstayed, and on 28 March 2011 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Algeria he would be harmed or killed by certain leader of the students political organization Ligue Nationale des Etudiants Algeriens (“LNEA”) and/or the leader of a terrorist group for spying on them for the Department of Intelligence and Security (“DRS”) and/or by DRS for subsequently refused to work for them. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Touggourt, Algeria. While studying in a university in El-Oued, the Applicant joined LNEA and participated in its various protests and rallies against the government over policy issues, during which he and his fellow LNEA students had on various occasions been arrested and detained by DRS agents during which he was beaten with wooden sticks before eventually being released.

3.  After obtaining his Bachelor degree the Applicant worked as a financial manager in El-Oued, and continued to be involved in LNEA’s activities, but one day in 2006 after attending a meeting with a LNEA leader Bou Ali, the Applicant was taken by DRS agents to their office where he was detained and threatened to spy on the leaders of LNEA and of a terrorist group for information as to their anti-government activities, and was released only after the Applicant eventually yielded to their demand, and which he did for the next the next few months spying on the activities of the leaders of LNEA and the terrorist group.

4.  However, in July 2006 he became suspicious that his spying activities for DRS may have been discovered by LNEA and the terrorist group, and fearing that he may as a result be killed by them, he decided not to carry on such spying activities for DRS and fled to Hassi Massoud City where he stayed and worked for one year without any incidents before returning to El-Oued in July 2007.

5.  Soon the DRS agents came to him to insist that he should resume spying for them, but as the Applicant feared that it would put his life at risk again, the Applicant decided to leave the country to avoid any further threats or risk from LNEA or the terrorist group or the DRS by departing Algeria on 21 April 2008 for Tunisia, Libya, Egypt and Malaysia before eventually arriving in Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 26 October 2015 and a Notice of Further Decision dated 16 June 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from LNEA or the terrorist group or DRS upon his return to Algeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that LNEA or the terrorist group were aware of his spying activities for DRS or of any adverse interest of DRS still have in the Applicant after all these years since he left the country, that in any event state or police 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 Algeria with a large population of 39 million people spread across a vast territory of more than 2.3 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 his home district in large cities such as Hassi Massoud City where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

8.  On 6 November 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 21 November 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.  In its decision the Board found inconsistencies, discrepancies and vagueness in the Applicant’s evidence as to his involvement in LNEA or his alleged spying activities for DRS that it doubted the credibility of his claim of fear of harm that caused him to come to Hong Kong, that even if his claimed activities were true that there is no evidence of any intention of LNEA or the terrorist group to harm or kill him other than his own speculations or any adverse interest of DRS or the Algerian authorities in him given the fact that he was able to stay and work in Hassi Masoud City for one year without incidents and that thereafter he was able leave the country without problem that it is not accepted will face any risk from anyone upon his return to Algeria that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 8 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) Procedural impropriety in that the Board failed to consider his severe pain and suffering inflicted upon by the police who assaulted him and accused him as a terrorist but which the Board failed to materialize his fear and persecution inflicted upon him where the Government’s involvements were clearly shown;

(2) Procedural Impropriety in that the Board failed to apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reform and means of relief introduced must be effective in any event but that the Board’s decision just focused on whether such reliefs showed merely signs of positive improvement;

(3) Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(4) Procedural impropriety/irrationality in the Board’s failure to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(5) Error or misdirection in law in the Board’s failure to take into account the considerations of psychological strain and threats to the Applicant personally or directly to kill him;

(6) That there was no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement of his home country.     

11.  Those grounds are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to conduct proper inquiries into relevant COI or being selective or improperly rely on irrelevant COI or that it failed to provide reasons for its decision. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.  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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

13.  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 88 - 104 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.  

14.  The fact is that it has also been established by the Director in his decision that the risk of harm from LNEA or the terrorist group in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Algeria, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.     

15.  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.

16.  Furthermore, the Applicant recently wrote to request to “close” his case as he wants to return to his home country.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave 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