SOUMAH OUSMANE v. TORTURE CLAIMS APPEAL

HCAL 172/2017

[2018] HKCFI 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 172 of 2017

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 23-year old man from Guinea who arrived in Hong Kong on 2 February 2014 and was permitted to stay as a visitor until 16 February 2014, but he overstayed until 27 February 2014 when he surrendered to the Immigration Department and raised a non-refoulement claim on 27 March 2014 on the basis that he would be harmed or killed by the Peuhl people being the largest ethnic group in Guinea while he is from another ethnic group Soussou.

2.  The applicant was born and raised in Conakry, Guinea and became a professionalfootball player in his home town in 2012 to earn his living.  Both of his parents are already deceased while the current whereabouts of his only brother is unknown.  He was not political and had never joined any political parties as he was only interested in playing football, but one afternoon in 2013 he ran into a group of Peuhl people on his way home from football practice who demanded that he voted for their candidate as president, and when he insisted that he was not interested in politics they warned him to stay away from the presidential election and threatened to kill him with their long knives if he did not do as they said before letting him go.

3.  When he returned home he did not report the threat to the police because even theywere afraid of the Peuhl people but as he was terrified by the incident he decided to leaveGuinea for his own safety, which he did on 16 July 2013 but on his way out of Guinea his taxi was stopped by a group of Peuhl people and was only allowed to leave after paying them some money.  He then went to various places such as Mali, Benin, Togo, Ghana, Egypt and Guangzhou.  In December 2013 he applied for asylum in Thailand but when his application was rejected he returned to China in January 2014 where he stayed for a month before coming to Hong Kong on 2 February 2014 where he subsequently applied for non-refoulement protection.

4.  On 10 November 2015 he completed his Non-refoulement Claim Form with the assistance of the Duty Lawyer Service and had a screening interview by the Immigration Officer on 8 January 2016.  By a notice of decision dated 1 March 2016 the Director of Immigration (“the Director”) rejected his claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.  In his detailed decision the Director upon considering the evidence provided by the applicant found that the risk of him being harmed by the Peuhl people on his return to Guinea as low, that state protection from the police in Guinea is available which would further lower or negate such risk, and that objective Country of Origin Information (“COI”) show that internal relocation alternatives are available and reasonable for the applicant as an able-body young man to live and work safely in other parts of Guinea with a large population of 11.78 million people spread across more than 245,000 square kilometers.

6.  By a notice of further decision dated 29 December 2016 the Director again rejected the applicant’s claim in the absence of his response to an earlier invitation to submit additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”).

7.  By then the applicant was in the process of appealing against the Director’s earlier decision to the Torture Claims Appeal Board (“the Board”) which he filed on 11 March 2016, and after giving evidence in person and answering questions from the adjudicator for the Board on 2 February 2017, his appeal was dismissed by the Board on 17 February 2017 which also confirmed both decisions of the Director.

8.  Having applied the correct legal principles and reminded itself of the “high standardof fairness” in its determination of the applicant’s claims because life and limb may be in jeopardy and his fundamental human right not to be subjected to torture is involved, the Board found the applicant’s evidence about his ordeal with the Peuhl people conflicting and inconsistent, but even on the basis that they were all true, it considered the risk of himbeing harassed for political or ethnical reasons as low, that it would be safe for him to livein Lower Guinea where Soussou are in the majority, that objective COI show that the risk facing the applicant emanates from politically motivated violence leading up to elections as occurred previously is now far lower than it was when he left Guinea, that even if he were subjected to such politically motivated violence, it considered that he would be ableto explain away as before given that he is not interested in politics, and that on the basis ofhis oral evidence the Board considered that he would not engage in any political activities upon his return to Guinea so as to create a profile putting him at a higher level of risk of harm.

9.  In the light of such findings the Board concluded that the applicant does not have any well-founded risk of persecution on any Refugees Convention basis, that there are no substantial grounds for believing him to be in danger of being subjected to torture if returned to Guinea as harassment in his case at the highest would not amount to torture, nor would it be by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, and that he does not face a genuine or substantial risk of being subjected to mistreatment should he return to Guinea, and hence he is not at risk under either BOR 2 or BOR 3.

10.  On 5 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he set out what seems to me the grounds of inadequate or improper interpretation and lack of legal representation when he stated:

“ I believe my hearing was not well interpreted as I meant it. Immigration did not give me any lawyer to follow my case before and at the hearing.”

11.  For his intended challenge based on inadequate or improper interpretation, in the absence of any particulars or specifics provided by the applicant it is not possible to ascertain in what way or manner was his evidence or submission “not well interpreted” at the hearing, but the Board clearly stated in paragraph 4 of its decision that when the applicant appeared in person on 2 February 2017, he was assisted by a French interpreter and that he did indicate that he had no difficulties with the quality of interpretation.

12.  At any rate, whatever problems the applicant may now have with the interpretation at the hearing, it is clear to me that the Board reached its conclusion by accepting and proceeding on the basis that there was indeed an incident between him and the Peuhl peopleas described by the applicant, that there was an altercation in which he was stopped by themwho asked him which sides of politics he supported, that he was threatened by them and as a result shaken by the incident which led to him leaving Guinea, and that it was on the basis of such findings and the available COI that the Board proceeded to consider and determine his appeal, hence in my judgment the intended challenge based on improper or inadequate interpretation has no relevancy or merit. 

13.  As for the intended challenge on lack of legal representation or assistance, the Court of Appeal in Re Zahid Abbas CACV 216/2017, [2018] HKCA 15 has clearly stated that the right to legal representation is not absolute, as Lam VP stated in paragraph 11 of his judgment:

“ As regards the challenge based on lack of legal representation, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimantor BOR 2 or BOR 3 or persecution risks must have an absolute right to freelegal representation at all stages of the proceedings. The applicant alreadyhad the benefit of legal representation in presenting his case to the Director of Immigration.”

14.  In the present case the applicant did have the benefit of legal representation under the Duty Lawyer Service in presenting his case to the Director of Immigration, and had advanced his case fully with oral evidence before the Board, I am therefore unable to find anything amiss arising from lack of legal representation in his appeal before the Board. 

15.  In the premises and for these reasons, I do not see any merit in either of the grounds relied on by the applicant in his intended challenge, nor do I find any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure ontheir part to apply a high standard of fairness in their assessment of his claim.  Accordingly, I am not satisfied that his intended application for judicial review is reasonably arguable, and I therefore 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

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