DAOUDA IBRAHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 987/2020

[2025] HKCFI 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 987 of 2020

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Daouda Ibrahim (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 15 May 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Nigerien. He was born on 1 January 1980 in Doutchi, Niger. He received 12 years of education and had worked as a mechanic trainee. He also operated his own auto repair shop.

The Claim

3.  The Applicant claimed that his uncle (“Uncle”) killed his father in February 2013 because of a dispute over the family land (“Land”). As the first son of his father, the Applicant was entitled to inherit the Land.

4.  The Applicant claimed that Uncle sent gangsters to threaten him on two occasions. The gangsters went to his home and told him that he would be killed if he took over the Land. The Applicant fled to Nigeria in June 2013 to avoid the gangsters. In August 2013, the Applicant heard from his mother that the gangsters went to his home to look for him for two more times. He therefore fled to Mainland China, where he stayed until November 2015.

5.  The Applicant claimed that he tried to seek asylum protection in Mainland China but was unsuccessful. He therefore came to Hong Kong in November 2015.

6.  The Applicant claimed that he would be harmed or killed by Uncle if he were returned to Niger. He claimed that Uncle had close ties with some Nigerien politicians and a close relationship with the terrorist group, Boko Haram. The gangsters who threatened the Applicant also said they were affiliated with Boko Haram.

Procedural history

7.  The Applicant arrived in Hong Kong on 16 November 2015 as a visitor. He was permitted to stay until 30 November 2015. However, he overstayed and surrendered to the Immigration Department on 25 January 2016. By a written representation of 11 August 2016, the Applicant lodged the Claim.

8.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

9.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

10.  On 25 May 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director as the proposed respondent.

11.  On 2 October 2024, the Applicant filed an affirmation (instead of an affidavit) applying to cancel his case stating that his family had helped him solving the problem in his country and that he was free to enter his country (“Withdrawal Application”).

12.  Although the Applicant named the Director as the proposed respondent in the Form 86 but he referred to the decision dated 15 May 2020 (which was the Board’s Decision instead of the DOI Decision) as the subject decision for his application and exhibited the Board’s Decision to the Supporting Affidavit. It is clear that the Applicant intended to apply for judicial review against the Board’s Decision. I proceeded with this case on such basis.

The DOI Decision

13.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Uncle intended to harm the Applicant. This was because no actual harm had been done to him or his family in Niger. There was also insufficient evidence to support the Applicant’s contention that his father was killed by Uncle. The absence or low intensity and frequency of past ill-treatments from Uncle on the Applicant and his family was indicative of a low future risk from Uncle upon the Applicant’s return to Niger. The Director did not accept that the ill-treatments, both physical and mental, inflicted upon the Applicant by Uncle attained a minimum level of severity.

14.  There was no indication that Uncle or his gangsters had acted in any official capacity or they were government officials. There was no indication that any government official or anyone acting in official capacity had involved in the Applicant’s conflict with Uncle. The Applicant was able to obtain his own Nigerien passport and to depart freely from Niger. He was not a target of the Nigerien government, nor did the Nigerien government had any adverse interest in the Applicant.

15.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

16.  Uncle was only a businessman and there was no indication that his business network extended to the whole country. The Director found that internal relocation would be viable. If the Applicant moved to Zinder, Uncle would have great difficulties in locating him. After considering his age, education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

17.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

18.  The Board found significant differences between the oral testimony by the Applicant at the hearing before the Board and his case before the Director as well as information provided in his grounds for appeal document. It also noted that the Applicant had significant delay in raising the non-refoulement claim in Hong Kong. The Board found that those factors undermined the Applicant’s credibility.

19.  The Board gave detailed analysis of the aforesaid discrepancies at §§67-94 of the Board’s Decision.

20.  The Board found that the Applicant had fabricated his claim for protection and that none of what he said about his situation in Niger was true. It did not accept that he had been visited by gangsters or received threats of any kind due to a land dispute. The Board did not accept that there was a real risk of Uncle or anyone associated with Uncle, or anyone else in Niger harming the Applicant for any of the reasons he had claimed, or for any other reasons, if he returned to Niger. The Board was not satisfied that there were substantial grounds for believing that there was real risk that the Applicant would be arbitrarily deprived of his life, have death penalty imposed on him or otherwise be deprived of his rights to life, if he were returned to Niger. The Board rejected the Applicant’s evidence in its entirety and found that there was no basis for the Applicant to claim non-refoulement protection.

21.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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.”

24.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

25.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only produced the Board’s Decision as exhibit without other supporting documents and without stating any supporting grounds or reasons.

26.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

27.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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; correctly identified the issues and observed high standards of fairness.

28.  The Board found that the entire claim of the Applicant was a fabrication. The Board did not accept that Uncle killed the Applicant’s father over a land dispute, nor the Applicant or his family was pressured or harassed or threatened by Uncle or his associates in relation to family land. The Board also did not accept that the Applicant left Niger for the reasons he had claimed nor he feared returning to Niger for the reasons he had claimed, or for any other reasons. The Board considered that the Applicant would not be at a real risk of any harm if he returned to Niger and there was not a real risk that the Applicant would face any of the proscribed forms of harm should he return to Niger.

29.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

30.  The Applicant subsequently filed the Withdrawal Application on 2 October 2024 applying to cancel his case. He stated that his problem had been solved with the help of his family and he was free to enter his country.

31.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

32.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

33.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

34.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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