MAIGA SOULEYMANE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 932/2020

[2025] HKCFI 905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 932 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Maiga Souleymane (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 March 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 25 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a citizen of Mali and Nigeria. He was born on 24 February 1977 in Mali, Africa. He received 10 years of education and had about 16 years of work experience as a farmer.

The Claim

3.  The Applicant claimed that he was born in a village in Bamako, Mali. When he was young, some members of his village (“Villagers”) hired gangsters to kill his father because they wanted to take over his family’s share in the land which was owned by people of his home village (“Land”). The Applicant’s mother then took the family to Nigeria and the Applicant grew up in Nigeria.

4.  In 2012, some gangsters wrote to the Applicant’s mother asking her to attend a meeting with the Villagers to discuss matters relating to the Land. She refused to attend. In the beginning of 2013, some gangsters went to the Applicant’s home in Lagos, Nigeria but nothing happened to the Applicant on that day.

5.  The Applicant’s mother received some threatening phone calls but she did not tell the Applicant what the calls were about. In one night, the Applicant saw some people trying to break into his home. One of them was carrying an axe. The Applicant fled from his home and he was unharmed in the incident (“Incident”). The Applicant did not know what happened to his family members who were staying inside the house at the time of the Incident.

6.  The Applicant fled to City Mia 2 where he stayed peacefully for two weeks. He later came to Hong Kong via Thailand and Macau with the help of his friend.

7.  The Applicant claimed that he would be harmed or killed by the Villagers if he were returned to Mali/Nigeria.

Procedural history

8.  The Applicant arrived in Hong Kong on 1 September 2013 as a visitor and was permitted to remain until 15 September 2013. He overstayed and surrendered to the Immigration Department on 8 May 2015.

9.  By a written representation of 29 May 2015, the Applicant lodged the Claim. 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.

10.  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.

11.  On 19 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 Board as the proposed respondent and the Director as the interested party.

12.  By another affidavit filed on 10 July 2024, the Applicant stated that: “my land dispute with my village people in my country is settled and I want to exit Hong Kong.” (“2024 Affidavit”)

13.  By a letter dated 13 January 2025, the Director informed the court that the Applicant had been removed from Hong Kong on 22 July 2024. The Applicant did not attend the court hearing scheduled for 23 January 2025. The notice of hearing dated 31 December 2024 sent to the Applicant’s address stated in the 2024 Affidavit was returned undelivered and marked “Addressee unknown”. As such, I decided to deal with the Applicant’s application for leave for judicial review according to the papers already placed before the court.

The DOI Decision

14.  The Applicant was not the owner of the Land and his family had left his home village in Mali for many years. The Applicant could not give any detail about the alleged land dispute, the death of his father, or even the current situation of the Land. He had no detail knowledge of the background of the Villagers and could not give details on alleged threats received by his mother. According to the Applicant’s account of events, he was at no time being harmed or ill-treated by anybody. Apart from his bare assertion, the Applicant did not adduce any evidence to support the Claim.

15.  The Director was of the view that it was unreasonable that the Villagers would still have interest on the Applicant and his family after such a decade since the death of his father while indeed the Villagers also owned the Land as the Applicant claimed. After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Villagers posed any threat to the Applicant.

16.  There was no information that the state was involved in, indifferent to, or had provided any form of encouragement to the Villagers to threaten the Applicant. The Applicant was able to obtain his Malian passport without any difficulty and he passed through the immigration authority of Nigeria without any hardship. The state of Mali/Nigeria did not have any adverse interest on the Applicant. 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, in both Mali and Nigeria.

17.  The Director further found that internal relocation would be viable. If the Applicant moved to Sikasso or Kayes in Mali or Abuja or Lagos in Nigeria, it would be difficult for the Villagers to locate him. After considering his age and education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

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

The Board’s Decision

19.  The Board accepted that it was possible that the Applicant’s father farmed village land in Mali which was allocated to his family and that he was killed because of a land dispute but the Board also found that the Applicant was not a witness of truth.

20.  The Applicant was unable to satisfactorily answer queries raised by the Board at the hearing before the Board. (See §§40-42 and 44 of the Board’s Decision)

21.  The Board noted that the Applicant’s travel history (as shown in his passport) was inconsistent with the Applicant’s alleged events for the Claim (§§34-36 and 43 of the Board’s Decision).

22.  The Board also found the Applicant’s account of events for the Claim inherently implausible and with inadequate details (§45 of the Board’s Decision).

23.  As the Board found the Applicant’s evidence not credible, there was nothing to support his claim for protection. 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

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

25.  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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

26.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only exhibited copies of his non-refoulement claim form, the DOI Decision and the Board’s Decision. No other supporting documents were produced.

28.  No proper ground for the 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.

29.  Having rigorously examined the Board’s 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.

30.  The Board found that the Applicant had fabricated and concocted his evidence to advance a claim for non-refoulement protection and that he was not threatened and his family in Nigeria was not harmed. The Board also found that the Applicant would not be at risk of harm from the Villagers should he return to either Mali or Nigeria.

31.  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 finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding 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 is not reasonably arguable.

Conclusion

32.  In the premise and having considered the Board’s 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 a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

33.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the notice of hearing sent by the court to the Applicant was returned undelivered, the court will send a copy of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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