ANAGO COMLAN HEBERT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1047/2020

[2024] HKCFI 3330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1047 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;

1.  The Form 86 is amended on the court’s own motion;

2.  Leave to the applicant to withdraw the Leave Application; and

3.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 1 June 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 May 2020 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 September 2018 who refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named “U.S.M.” as the proposed respondent and the Board as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

3.  The background as taken from the Board’s Decision can be briefly stated as follows.

4.  The applicant came from Benin. According to the Director, he arrived in Hong Kong on 6 January 2017 on the strength of his Beninese passport. He was required to depart Hong Kong on 20 January 2017 but instead illegally overstayed. He surrendered to the Immigration Department on 23 January 2017 and subsequently lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being harmed or killed by Voodoo priests because of his rejection to be the village chief of the Vedeme (Ouèdèmè) village.

5.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that the applicant’s claim did not indicate that the state of Benin was involved in the dispute with his enemies, and that state protection was available. The applicant’s supporting documents also did not advance his claims. It was found that the option of internal relocation was viable. Hence, the appeal to the Board.

6.  In the Board’s Decision, the Board found that the applicant was a single man with experience of running his own business and that he did not face any real risk under any of the applicable grounds. Further, there were viable and reasonable internal relocation alternatives available.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, apart from exhibiting the Board’s Decision and the hearing bundle placed at the hearing before the Board, there were no evidence or identification of errors in support of the intended challenge.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant did not face any real risk under all applicable grounds and that viable and reasonable internal relocation options were available.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

11.  On 24 October 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that he wanted to “cancel” his case.

12.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

The removal of the applicant

13.  The court has recently received information from the Immigration Department that the applicant was removed from Hong Kong.

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