CAMARA DANNY MAURICE v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 4 August 2021”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 16 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 4 August 2021 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 4 August 2021 (“the Board’s Decision”), which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 November 2017 (“the Director’s Decision”).

3.  As the applicant had attached a copy of the Board’s Decision to his supporting affirmation dated 16 August 2021, it is clear that the applicant was referring to the Board’s Decision in his Form 86.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001153_2021_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendments

5.  In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B.” as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 4 August 2021”.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Guinea, he feared being harmed or killed by his paternal uncles and aunts due to a property dispute.

Oral hearings

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 26 March 2026. 

11.  When this court asked the applicant for the grounds of his intended judicial review, he replied that he did not have much to say as he had explained everything to the Board and he maintained what he said.  He added that when the Board asked him for proof, he said that things in his country were not going well and hence he could not collect any proof.

Grounds for judicial review

12.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation. 

14.  What the applicant said at the oral hearing before this court cannot amount to any valid ground for judicial review either.

Discussion

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

17.  In assessing the appeal by the applicant, the Board held an oral hearing on 2 October 2018.  The applicant was present and was given the chance to present his case to the Board in person. 

18.  As can be seen from the Board’s Decision, the Board found that the applicant’s inexplicable delay in seeking non-refoulement protection (from late 2011 when he departed his country until late August 2017) contradicted his alleged fear of persecution and hence the centrepiece of the applicant’s claim did not stand.  Nevertheless, the Board still went on to assess the applicant’s claim based on his account of story.

19.  The Board found that the applicant’s risk, if any, stemmed only from a civil/private dispute, namely the dispute over the ownership of the applicant’s father’s properties.  The alleged persecution by his uncles and aunts was not for a Convention reason.  Despite frequent visits to the applicant’s family house, his uncles and aunts had only made verbal demands with threats, asking the applicant not to fight against them for his father’s properties.  Although the applicant claimed that he was attacked by some unknown men, he in fact injured his left arm after he fell into the gutter during the incident when he was running away from those men.  It was only the applicant’s own speculation that those unknown men were sent by his uncles and aunts.  There was no evidence that his uncles and aunts had taken any steps to actualise the alleged threats.

20.  The Board did not consider that the alleged ill-treatment, whether physical or mental, had reached the level of minimum severity.

21.  Further, the Board had addressed the applicant’s concerns about the unavailability of state protection due to corruption of the Guinean police.  The Board found from extensive, fully-referenced country of origin information (“COI”) that despite setbacks, adequate state protection was available to the applicant in Guinea to protect him from the alleged persecution and threats from his paternal uncles and aunts.

22.  In view of its findings that the applicant did not face any of the proscribed forms of harm under the USM and that state protection would be available to him upon his return to his country, the Board did not consider the viability of internal relocation for the applicant.

23.  It is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

24.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

25.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

27.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.  For reasons aforesaid, the Leave Application is dismissed.

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