RE HOUNSOU TRIN GBETOME VALENTIN

CACV 494/2024, [2025] HKCA 305

On appeal from [2024] HKCFI 3005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 494 OF 2024

(ON APPEAL FROM HCAL NO. 2183 OF 2019)

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”)  given on 15 November 2024[1] refusing leave to the applicant to apply for judicial review against the decision dated 29 July 2019 of the Torture Claims Appeal Board (“the Board”)  dismissing the applicant’s appeal against the decision dated 24 August 2018 of the Director of Immigration (“the Director”)  which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 25 March 2025.  The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.  

The applicant’s claim

4.  The applicant is a national of Beninese, aged 45. He last entered Hong Kong as a visitor on 12 November 2016 and had overstayed since 27 November 2016. He surrendered to the Immigration Department on 29 November 2016 and lodged a non-refoulement claim on 31 July 2017. His claim was made on the basis that, if refouled, he will be harmed or killed by the Muslims due to inter-religious conflict and by his uncle over an unpaid debt. The details of his claim were set out at [14] to [21] of the Board’s decision.  

5.  In gist, the applicant was born in Benin and was raised as a Christian. He moved to live in Nigeria with his mother since he was young. He claimed that the Muslims were long embroiled in conflicts with the Christians in Nigeria and that he and his friends had been subjected to attacks by the Muslims in the summer of 2011 during a football game and had sustained a cut to his ankle. In 2014, he left Nigeria for Benin. While the applicant was in Benin, he met his uncle who had passed him US$30,000 for his safekeeping; the money was eventually lent to the applicant as a loan to start his business selling snacks. Subsequently, the applicant defaulted on the loan as he had been robbed one evening in April 2015 whilst making his way to his uncle’s home in order to repay his uncle the profits he had reaped from his business. The applicant claimed that his uncle had threatened to kill him if he failed to repay the loan.  The applicant never sought assistance from the police as he believed they could not protect him. Fearing for his safety, the applicant departed Benin for Nigeria on 24 September 2016. He then left Nigeria on 29 October 2016 and arrived Hong Kong via Guangzhou on 12 November 2016.  On 27 November 2017 (about 4 months after the applicant had lodged his non-refoulement claim), the applicant married a Chinese resident in Hong Kong and has since been living with his wife in Hong Kong. He claimed that he would be separated from his wife if he were to be repatriated to Benin or Nigeria. 

The Director’s and the Board’s decision

6.  By a decision dated 24 August 2018, the Director rejected the applicant’s claim on the torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.  

7.  The applicant appealed to the Board and a hearing took place on l8 July 2019 during which the applicant testified and answered questions from the Board. By a decision given on 29 July 2019, the Board dismissed his appeal.

8.  The Board first considered whether the applicant is a dual national of Benin and Nigeria. The Board assessed that he is a national of Benin as there was insufficient evidence to establish his Nigerian nationality by descent (from his mother)  or to establish that he had been a habitual resident in Nigeria immediately before he came to Hong Kong[6].

9.  In relation to the applicant’s fear of the Muslims due to his faith, on the basis of the country of origin information (COI), the Board considered that although inter-religious conflicts exist between Muslims and Christians in Nigeria, the conflicts should be viewed in the context of a wider respect and collaboration between the two religions, which may not have received the same publicity as the reported riots and violence[7].  Furthermore, the Board considered that the threats posed by the Muslims groups were not directed at the applicant personally[8].  As regards the applicant’s fear of his uncle over the loan, the Board found it implausible that his uncle would extend a huge amount of unsecured loan to the applicant who had no prior business experience[9]. The Board did not accept that the loan existed or that the applicant had been robbed in Benin or that he was under any threat or danger posed by his uncle[10].  Further, the available COI shows that the applicant could resort to the protection of the police[11] and that internal relocation to Cotonou is a viable option for the applicant[12].  Lastly, the Board did not consider that the applicant’s separation from his spouse is a factor qualifying the applicant for non-refoulement protection under any of the applicable grounds[13].  For these reasons, the Board concluded that the applicant failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

10.  By a Form 86 dated 1 August 2019, the applicant applied for leave to judicially review the Board’s decision. No grounds of relief were raised in the Form 86 or his supporting affirmation.  

11.  The Judge held an oral hearing on 21 October 2024 which was attended by the applicant. By a judgment dated 15 November 2024, the Judge refused to give leave for judicial review and gave his reasons at [18] to [24] as follows:

“18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not mean that the Board was wrong. But he further said that he had a wife who is a Hong Kong resident and a daughter of 4 years old.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘3. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

21. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

22. The fact that he has a family in Hong Kong does not amount to a valid reason in support of his claim. The Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, CJ Ma, Mr Justice Ribeiro PF, Mr Justice Fok PJ, Mr Justice Stock NPJ and Mr Justice French NPJ, 4 April 2019 held:

‘0. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11.’

23. There is no reason that the Court should interfere with the Board’s finding of the facts.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

This appeal

12.  On 22 November 2024, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  He did not put forward any grounds of appeal apart from stating that he wants to appeal against the decision of the Judge.  

Discussion

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  Further, it is well established that assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

15.  In light of the established legal principles set out above, we are of the view that there are no merits in the appeal. Our reasons are as follows:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law or irrational or there is procedural irregularity or unfairness.  In his Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board.  Further, the Judge, having scrutinised the Board’s decision, concluded that there was no valid ground to challenge the decision. 

(2)  At the hearing before the Judge, the applicant alluded to the fact that his wife is a Hong Kong resident and that they have a 4 year-old daughter in Hong Kong.  He contended that he had to take care of his daughter in Hong Kong and thus should not be repatriated to Benin.  This, however, does not detract from the fact that he does not have any right to enter or to remain in Hong Kong.  It is well-established that a family member (who has a right of permanent residence in Hong Kong)  of a person (who has no right to remain in Hong Kong)  cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019)  22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15].  Accordingly, the fact that the applicant is married to a permanent Hong Kong resident and they have built a family here is not a relevant consideration in assessing his non-refoulement claim.

(3)  Furthermore, we have separately considered the Board’s decision.  Like the Judge, we do not discern any legal errors, irrationality or procedural irregularities. We see no proper basis for disturbing the Board’s rejection of the applicant’s claim and its findings on the available COI that state protection and internal relocation would be available to the applicant.  The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

16.  We agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.  For the above reasons, this appeal is dismissed.