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HCAL 281/2018
[2018] HKCFI 2834
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 281 of 2018
BETWEEN
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Barry Oumar |
Applicant |
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Director of Immigration |
1st Putative Respondent |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 40-year-old national of Guinea who arrived in Hong Kong on 5 August 2010 when he was arrested for trafficking in dangerous drugs, for which he was subsequently convicted and sentenced to prison for 10 years and 8 months. Upon serving his sentence he was referred to the Immigration Department for deportation when he lodged a non-refoulement claim on the basis that if he returned to his birth place in Guinea or his residential country Nigeria he would be harmed or killed by certain drug dealers over his drug bust in 2010.
2. The applicant was born in Guinea but raised in Nigeria where his father worked and his family lived in Abia State, Igkuhana, Oboro, Nigeria. After leaving school he worked as a hawker, got married with two children but was later divorced from his wife.
3. In January 2010 during a trip to Thailand looking for jobs when he met two drug dealers one of whom was from Africa and was offered US$3,000 to deliver dangerous drugs to Hong Kong to their people at the airport, for which as noted above he was arrested in August 2010 and was subsequently sent to prison.
4. Whilst in prison he was informed by his family that those drug dealers had come to his home in Nigeria in 2011 looking for him, and when they could not find him they threatened to kill him for taking their money without delivering their goods to their people in Hong Kong, and in 2012 he was told by his sister that those drug dealers had come again to demand that his family paid US$54,000 to them as compensation, and when they were unable to do so they kidnapped his father and later murdered him.
5. In 2014 the applicant was told by his sister that as those drug dealers continued to make death threats against them and had also gone to Guinea to look for him, his family therefore planned to move away to avoid them. Thereafter the applicant had been unable to contact his sister again, but he was later told by his aunt that some other members of his family had also been kidnapped and that reports had been made to the Nigeria police. As the applicant became fearful that he would likewise be harmed or killed by those drug dealers upon being deported from Hong Kong after his release from prison, he therefore lodged his non-refoulement claim for which he completed a Non-refoulement Claim Form on 6 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
6. By a Notice of Decision dated 16 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”).
7. 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 there will be any real risk of him being harmed or killed by those drug dealers upon his return to Guinea or Nigeria due to absence of any ill-treatment from them in the past, that all their threats made against him and his family were based on hearsay from his family members without any independent corroboration, that in any event in the absence of official involvement that state or police protection in either countries 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 both Guinea and Nigeria with large populations of 12.4 million and 190 million people respectively spread across vast territories that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district in large cities such as Nzerekore in Guinea or Abuja or Lagos in Nigeria where it would be difficult if not impossible for those drug dealers to locate him.
8. On 30 October 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 9 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 25 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board found no credible evidence of the applicant being pursued or threatened by those drug dealers or that his family had been threatened or harmed by them, and rejected his claim that he is unwilling to return to Guinea or Nigeria due to any well-founded fear of being persecuted or harmed under any of the applicable grounds, and as those drug dealers are clearly non-state actors that state and police protection would be available to the applicant in Guinea and Nigeria, and concluded that it was unnecessary to consider internal relocation alternatives as the applicant has failed to show any grounds for believing that if refouled that there would be a real risk of harm to him upon his return to Guinea or Nigeria.
10. On 22 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 the wrong decision in assessing his USM claim;
(2) that their decisions were unfair and unreasonable under the Wednesbury test;
(3) that their decisions failed to take into account that right to life must be protected from extra-judicial killings which he may face if deported to his home country; and
(4) that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim and his appeal.
11. These are however all very broad and vague assertions of the applicant containing several 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 their decision, or how were their decisions unfair or unreasonable, or in what way were extra-judicial killings relevant to his case. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by him in those decisions, I do not find any basis or merit in any of these complaints of the applicant.
12. The applicant did at the oral hearing of his application and with leave of the Court produce copies of the following documents which he claimed to have been obtained recently in response to the Board’s criticism of lack of documentary evidence to support his claimed fear of threats from those drug dealers:
(1) police entry dated 26 February 2011 of the Nigeria Police of a complaint made by the applicant’s father of being threatened at his home by some unknown gunmen looking for the applicant for disappearing with their money and goods;
(2) police entry dated 12 September 2012 of the Nigeria Police of a complaint by the applicant’s sister of the kidnap and murder of the applicant’s father by unknown gunmen;
(3) Death Certificate of the applicant’s father’s death dated 12 September 2012 issued by Probate Registry of Birth and Deaths of Abia State;
(4) announcement of Burial Arrangement for the applicant’s father;
(5) police entry dated 10 October 2014 of the Nigeria Police of a complaint of the kidnap of two of the applicant’s siblings by the same unknown gunmen;
(6) certificate of Divorce of the applicant’s marriage dated 24 March 2014 issued by the Customary Court of Abia State.
13. Even putting aside the question of authenticity of these documents, or the scarcity or lack of details in some of these documents such as the police entries of the various crimes being complained of by the applicant’s family, in particular the cause of death of the applicant’s father simply stated as assault/murdered in the Death Certificate which led to further doubt over the truthfulness or accuracy of their contents, that even if they were all genuine these documents do not in my judgment advance the applicant’s case any further, as it has been established by both the Director and the Board based on reliable and objective COI that if those threats from the drug dealers were indeed true and in the absence of any official involvement that state or police protection would be available to the applicant upon his return to either Guinea or Nigeria.
14. Further, the fact that it has also been established by the Director in his decision, and in my view would have been by the Board as well on the basis of the COI available were it found it necessary to consider that issue, that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other areas of either Guinea or Nigeria, 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 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.
16. 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.
Dated the 3rd day of January 2019.
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(NG Ka-wing)
for Registrar, High Court |
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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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 3 January 2019
Barry Oumar
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 January 2019
Director of Immigration
1st Putative Respondent’s ref. no.:
QA T/C 2259/17 (formerly RBCZ 11350/17)
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
2nd Putative Respondent’s ref. no.:
USM 8966/17/10/296/GIN24
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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