MANE HAMIROU v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 294/2018

[2019] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 294 of 2018

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 28-year-old national of Guinea who arrived in Hong Kong on 30 November 2014 with permission to remain as a visitor up to 3 December 2014 when he did not depart and instead overstayed until 8 December 2014 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to Guinea he would be harmed or killed by the Guinean authority including the army having already killed his father.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Aledala, Conakry, Guinea where his father was in the army as a paratroopers commander and was subsequently chosen as one of the bodyguards for the President.

3.  In early 2005 following a failed attempt of coup d’état, one night two vehicles bearing the logo of the national police arrived in front of the applicant’s house, and soldiers armed with machine guns got out and seized the applicant’s father and took him away without saying anything.

4.  On the following morning the applicant was unable to obtain any information from the military base in his home area but heard rumours in the neighbourhood that his father may have offended someone in the military for tipping off to the President of the attempted coup.

5.  Shortly thereafter some policemen came to the applicant’s home to take him to the police station where he was detained for interrogation as to what sort of information his father may have passed before his arrest. As the applicant was then just a school boy and did not know anything about his father’s work, he was eventually released after two weeks unharmed by the police.

6.  Upon returning home the applicant heard news reports about many people being killed by the army over the failed coup including his father, and was advised by his neighbours that for his own safety he should leave Guinea, and so the applicant left for Petite Dakar, Senegal where he stayed for several years playing professional football.

7.  In 2011 or 2011 he left Senegal for Mali to play football there until 2014 when he went to Thailand where he played football until when his visa was not extended he therefore returned to Guinea, but as he was still fearful of being killed by those in the army who had killed his father, he left Guinea again on 30 November 2014 for Hong Kong where he overstayed and lodged his non-refoulement claim.

8.  Whilst released on recognizance pending determination of his claim, the applicant was arrested by police for trafficking in dangerous drugs for which he was subsequently convicted and sentenced to imprisonment during which he completed a Non-refoulement Claim Form on 20 September 2017 for his claim and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 24 October 2017 the Director of Immigration (“the 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 (“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”).

10.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that his perceived fear of the Guinean authorities or army is real and foreseeable in the absence of any past ill-treatment from them, that there is no independent evidence of him being pursued by the Guinean authorities or police over the past 12 years when he was able to enter and leave Guinea without any problem, that in the absence of any evidence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Guinea with a large population of 12 million people spread across a vast territory of more than 245,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other areas away from his home district such as Labe where it would be difficult if not impossible for his perceived enemy to locate him.

11.  The applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended three oral hearings on 16, 17 and 26 January 2018 before the adjudicator for the Board with legal representation during which he gave evidence and answered questions put to him during the hearings.  On 15 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board upon hearing the applicant in evidence found illogical and incredible factual contentions in his account and did not accept that there is any probable truth in what he claimed about his father being arrested or killed by the army or of him being detained by the police for interrogation, or in fact as to his true identity as shown in his identification documents, nor is there any reasonably credible or plausible account of events for the Board to infer that he would likely be at risk of ill-treatment in Guinea, and concluded by rejecting his claim on all applicable grounds.    

13.  On 23 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were unreasonable and unfair under the Wednesbury test;

(3)  that they failed to take into consideration that the right to life must be protected from extra-judicial killings which the applicant may face if deported to Guinea; and

(4)  that the adjudicator failed to give him sufficient time or opportunity to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.  

14.  These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision, or in what way were their decisions unreasonable or unfair, or what relevancy were extra-judicial killings to his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15.  The same can be said about his complaint of not being given sufficient time or opportunity to provide evidence in support of his claim or his appeal, when he never raised any such issue at any of his three oral hearings before the adjudicator during which he was legally represented by a lawyer and hence with ample time and opportunity to do so.  Even in his application now before me the applicant did not provide any additional evidence in support of his claim, nor did he request for further time for him to do so.  In the premises I do not find any merit in this complaint of the applicant either.    

16.  The fact is that the applicant’s claim was rejected by the adjudicator essentially on his credibility with the benefit of having heard him in evidence in not one but three hearings and for the detailed analysis and reasons set out in paragraphs 26 – 63 of the Board’s decision in which the applicant did not identify any legal error or procedural unfairness or irrationality.

17.  As has been repeatedly emphasized by the Court of Appeal, 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 error being 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

18.  In the premises and having proceeded to consider 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.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse 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