EBA AKA JUSTIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1527/2019

[2024] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1527 of 2019

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated29 April 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 October 2018 (the “Notice”).

2.  The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86. It has not been returned through the post. He never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is an Ivorian national. He entered Hong Kong on 3 November 2015 as a visitor and was permitted to remain until 5 November 2015. He overstayed and surrendered to the authorities on 25 January 2016. On 13 April 2017, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if refouled, he will be harmed or killed by his ex-employer who believed he had stolen from his ex-employer’s shop.

5.  The Applicant, now aged 41, was born in Anyama, Cote d’Ivoire. He received education up to Class 10. In around late 2011, he was employed as an apprentice salesman in a shop selling gold. His ex-employer was a notorious local business tycoon and a member of an extremist Jihadi group called the ‘Vagabonds’. His ex-employer often travelled leaving the Applicant and another apprentice (the “colleague”) to manage the shop. There was no security system, CCTV cameras or security guards in the shop.

6.  At 11 am on 15 July 2015, three robbers entered the shop and threatened the Applicant and his colleague with a handgun and machetes. They stole about US$300,000 worth of gold and US$1,500 cash from the shop. No physical injuries were inflicted on the Applicant and his colleague. After the incident, the Applicant and his colleague immediately informed their ex-employer who was on a business trip in Liberia. Then they reported the robbery to the police but the police took no action. The Applicant believes that was because he had not paid a bribe.

7.  When their ex-employer returned on 16 July 2015, he confronted the Applicant and his colleague accusing them of theft. He suspended them from work and threatened to kill them if they did not compensate him the value of the gold lost within a week. The threat prompted the Applicant to avoid his ex-employer by staying at his grandmother’s house or with his friends. He lost contact with his colleague who did not have a phone. His ex-employer never made a report of the theft to the police.

8.  Around late July 2015, his ex-employer’s men visited the Applicant’s home three times. They verbally abused his grandmother and issued death threats to the Applicant. Three days later, his grandmother passed away due to a heart attack caused by the stress of the visits.

9.  During his grandmother’s burial in early August 2015, the Applicant received a call from his ex-employer who threatened to cut off his head and dump his body parts into the river if he did not return the gold. In mid-August 2015, the Applicant learnt that his colleague had been shot dead. He suspected his ex-employer was responsible. Thereafter, he received further threats from his ex-employer who told him that he had nowhere to hide in Cote d’Ivoire because his ex-employer had bribed the authorities.

10.  After obtaining a visa to travel to China, the Applicant fled Cote d’Ivoire on 20 October 2015 for Nigeria after travelling through Ghana, Togo and Benin. Then he flew from Nigeria to Hong Kong via China to seek protection. He believes internal relocation within Cote d’Ivoire impossible due to his ex-employer’s connections. He does not believe state protection would be available because his ex-employer had bribed the authorities.

The finding of the Board

11.  The Applicant testified before the Board. The Board found his evidence about a number of key aspects of his claims confusing, inconsistent and far from being convincing. He testified that the robbery occurred at 4 pm (instead of at 11 am as stated in the NCF) and that the robbers took US$50,000 cash in addition to gold (as opposed to US$1,500 cash plus gold in the NCF). The Applicant also testified that his ex-employer had told the police to arrest him and his colleague. But in his NCF, he said that his ex-employer had not reported the theft to the police. At the screening interview, he supplemented that the reason was his ex-employer had his own gang to recover the stolen gold.

12.  The Board found it inherently improbable that a business tycoon would operate a gold shop keeping such a large amount of gold and cash, with such lax security in an impoverished country with about 50% of its population living below poverty line after a 15 year period of internal armed conflict and instability, and with high levels of street crimes, armed robberies and thefts. It also found it incredible that the Applicant would remain in Anyama for three months after his colleague who was suspected of the same thing by his ex-employer had been murdered, especially when he had already obtained his visa to Mainland China.

13.  The Board found his evidence about the key aspects of his claims was so confusing and inconsistent that it could not have been his personal or actual experience and considered it was embellished, exaggerated and fabricated in part to create a claim to be owed protection[5]. Having rejected his evidence, the Board found he had failed to establish the factual basis that he will be subject to any of the proscribed risks of harm, if returned to his home country. It therefore found the Applicant is not entitled to protection under any of the four applicable grounds under the USM; and dismissed his appeal.

The legal principles applicable to judicial review

14.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

15.  The Applicant put forward the following grounds of judicial review in his Form 86:

(1)  The Decision is wrong, unreasonable and unfair;

(2)  The Director failed to give proper weight to the presence of state acquiescence;

(3)  The Board acted unreasonably and was procedurally unfair;

(4)  The Director failed to take such argument into account or give it enough weight;

(5)  The Director failed to attain the high standard of fairness required by the Wednesbury test;

(6)  The Adjudicator (1) acted improperly and/or unfairly; (2) unreasonably; and (3) failed to take into account the nexus of political parties and official corruption in Gambia; and

(7)  The Decision is irrational as the Adjudicator should have allowed his appeal.

16.  The Applicant’s complaints are directed at the Director and the Adjudicator of the Board. For his benefit, it is assumed that all the complaints are directed at the Board which is the decision-maker.

Ground (1) - The Decision is wrong, unreasonable and unfair

17.  This is a broad and un-particularised allegation. It will be covered in the Court’s analysis of his other particularised complaints of unreasonableness, procedural unfairness and irrationality and in the Court’s overall scrutiny on these matters.

Ground (2) – Failure to consider state acquiescence

18.  This complaint is founded on torture at the behest of the state law enforcement agencies as well as those in the high ups of political circles. The alleged torture was raised for the first time in his grounds of application. He had never advanced any evidence, not even allegation of such torture, let alone by state law enforcement agencies or people holding high positions in political circle. There is no factual basis in support of this ground of application. Obviously, the Board did not deal with this issue for the simple reason that such issue did not arise.

Ground (3) – Failure to properly consider COI

19.  The Applicant complained that the Board acted unreasonably and procedurally unfairly by placing too much reliance on the COI and failed to take his personal background and experience into account. The Board considered relevant COI from a number of independent sources about human rights and security conditions in Cote d’Ivoire. The most important COI to which the Board gave significant weight are those about the economic conditions of Cote d’Ivoire, namely that Cote d’Ivoire is an impoverished country, half its population is living below poverty line, it had suffered a 15 year period of internal armed conflict and instability, and it had high levels of street crimes, armed robberies and thefts[7]. These facts had been put to the Applicant along with the Board’s concern why under such economic climate his ex-employer would have left his shop with such a large stock of gold and cash without security guard and CCTV cameras to the care of two young men. The Applicant gave no answer but a long period of silence. Another COI put to the Applicant was about the treaty of the Economic Community of West African States (“ECOWAS”)[8]. The Board asked the Applicant why he did not relocate to one of those ECOWAS states to avoid his risk of harm.

20.  The COI considered by the Board and to which it gave weight had been put to the Applicant for his response. The Applicant had also been invited to produce COI which he thought relevant, but he did not adduce any. The Applicant had been specifically and repeatedly asked if anything of relevance had happened in Cote d’Ivoire in the past three and half years when he had been out of the country[9]. He said nothing had happened. He adduced no COI which contradict those referred to by the Board. Under this specific ground of application, he also quoted no COI contradict those referred to by the Board.

21.  As for his complaint that the Board failed to give enough weight to COI showing the police would not be able to protect him, it is not the Board’s finding that state or police protection is available. The Board had not considered the issue of state protection at all. It found the Applicant’s evidence incredible, unreliable and had failed to prove his risk of harm. Hence, on the facts which the Applicant was able to prove, the issue of state protection did not arise.

22.  This ground is just a mere allegation with no factual basis in support.

Ground (4) – Failure to take such argument into account or give it enough weight properly

23.  By “such argument”, the Applicant must mean his arguments mentioned under this ground, ie “this was a clean case of unfair attitude shown by the Director” because “the corruption and incompetency of the administration in Philippines is still a very serious problem” as supported by reports compiled by various human rights organizations. It is difficult to see how the corruption and incompetency of the administration in the Philippines could have any bearing in the Applicant’s claim for non-refoulement to Cote d’Ivoire. Even assuming reference to the Philippines is a typographical error and that it refers to Applicant’s home country, it has no impact to the Board’s Decision that the Applicant had failed to prove his risk of harm. This ground is obviously a “copy and paste” work from a Filipino applicant which has no bearing to the facts of this application.

Ground (5) – Breach of the high standard of fairness

24.  The Applicant has not provided any particulars of the breach. His allegation is vague and general. For reasons as explained below, upon an anxious scrutiny of the Decision, this Court is satisfied that the high standard of fairness has been observed by the Board.

Ground (6) – Procedurally improper and unfair

25.  The Applicant complained that the Adjudicator (1) acted improperly procedurally and/or unfairly when assessing whether to accept his explanations; (2) unreasonably required him to respond to questions which he was not in a position to offer any response; and (3) failed to take into account the nexus of political parties and official corruption in his home country.

26.  Complaint (1) is in essence a challenge of the Board’s finding of fact and the Applicant’s credibility which are within the realm of the Board and which the court in a judicial review may not intervene, save of errors of law, procedural unfairness and irrationality in the Decision. This complaint will be covered by the Court’s overall scrutiny of the Decision below.

27.  As for Complaint (2), it is true that the Board had put questions to the Applicant and he was unable to respond. The Board put its concerns about the Applicant’s evidence so that he may respond or explain to ease the Board’s concerns. It is the Board’s duty to do so and a breach of the high standard of fairness if it did not. The Applicant had not identified the questions complained of and the circumstances which would make it unfair for the Board to ask such questions. There is no substance in this complaint.

28.  Complaint (3) is vague and lacking particulars. The Applicant has not explained how the political status of the Applicant’s ex-employer and official corruption in his home country would have any bearing on the Board’s finding that the Applicant was not credible and failed to prove his risk of harm and on the Board’s Decision based on that finding.

Ground (7) – Irrationality

29.  The Applicant argued that the Board should have allowed his appeal than dismissed it. He is in effect challenging the finding of fact by the Board. This is not permissible, save for errors of law, procedural unfairness and irrationality. The Court will further consider this ground in its overall scrutiny of the Decision below.

Overall scrutiny of the Decision

30.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

31.  The Decision of the Board is based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. It found him incredible and his evidence unreliable. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of his claim, such a finding is fatal. It was on that basis that the Board found that the Applicant had failed to prove his risk of harm. Hence, there was no factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks.

32.  The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision is utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered the Applicant’s grounds of application, the Court is satisfied that his claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

33.  For the above reasons, leave to apply for judicial review is refused.

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