CAMARA IDRISSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 99/2020

[2024] HKCFI 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 99 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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Republic of Guinea (“Guinea”) who arrived in Hong Kong on 28 February 2018 as a visitor with permission to remain as such up to 14 March 2018 when he did not depart and instead overstayed, and on 26 March 2018 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Guinea he would be harmed or killed by some unknown men who had earlier murdered his parents. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Matam, Conakry, Guinea. After leaving school he had no formal job but continued to reside with his parents with his father being the head of security of a private company in his home district that he just drove his father to work every day.

3.  One evening in 2017 some intimidating words appeared on the outside walls of his parents’ home of which the Applicant had no idea were written by whom or for what reason or purpose.

4.  About 2 months later one evening while he was away from home attending an English course, the Applicant was informed that his parents had just been murdered by some masked men who then vandalized their home before setting fire to burn the house down.

5.  As he became fearful for his life, the Applicant went into hiding in a friend’s place without going home, and with his friend’s help he departed Pakistan on the same night for Malaysia as he did not have sufficient money for the flight to Hong Kong, and upon arriving in the Malaysian airport, he befriended a fellow traveler who was a local businessman, and upon learning what had happened to him, this businessman became sympathetic for him and arranged for him to stay in Malaysia for the time being.

6.  After about one month this businessman then bought a ticket for the Applicant to fly to China, and from there the Applicant later on 28 February 2018 travelled to Hong Kong as a visitor with permission to stay for 2 weeks, and after he subsequently overstayed the Applicant then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 27 August 2018 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those unknown killers of his parents upon his return to Guinea as low due to the absence of any past ill-treatment from them, that there is no evidence that his parents had in fact been murdered by those unknown killers other than hearsay or of any evidence of any intention of them to harm or kill the Applicant as well other than his own speculations, that in any event in the absence of any evidence of any 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 (“COI”) 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 24,000 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 where it would be difficult if not impossible for anyone to locate him.

9.  On 10 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence in particularly as to how he managed to leave the country on the same night of the alleged murder of his parents and to stay in Malaysia for one month and then travelled to China and Hong Kong all with the help of a stranger, while the alleged murders of his parents were all just hearsays without any indication of any motive or any reliable evidence to corroborate such allegation that the Board doubted the Applicant’s claim of fear of harm from those unknown men that caused him to leave his country in the manner as alleged and to come to Hong Kong to seek protection without first going to the local police or authorities of his own country for help, and that even if his claimed account of events were true that in the absence of any evidence of any official involvement that state or police protection would be available to the Applicant upon his return to Guinea well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 9 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility of his alleged fear of harm from unknown men for the thorough and detailed analysis and reasoning set out 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.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Guinea, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises, and 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.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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