WILLIAMS CHARLES MARCEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2707/2019

[2025] HKCFI 2328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2707 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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Liberia who arrived in Hong Kong on 8 January 2014 as a visitor with permission to remain as such up to 22 January 2014 when he did not depart and instead overstayed, and on 3 March 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Liberia he would be harmed or killed by a local gang for causing the death of one of their members in a traffic accident. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Montserrado County, Liberia. After leaving school he assisted in his father’s farming growing crops in his home district.

3.  One day in November 2013 while he was driving his car to work, he accidentally knocked down and killed a man who jumped onto the road into the path of his car.

4.  When he later learnt that the victim was a member of a notorious local gang who were out looking for him to kill him in revenge, the Applicant went into hiding in a friend’s place, and shortly thereafter he was told by his friend that those gangsters had come to his house looking for him, and when they could not find him, they killed his father and later also burnt down his family house.

5.  Fearing that he would be located by those gangsters in his home country, the Applicant on 31 December 2013 departed Liberia for China, and from there he later travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 2 November 2018 the Director of Immigration (“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 Ordinance, Cap. 383 (“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 assessed the level of risk of harm from those local gangsters upon his return to Liberia as low due to the absence of any cogent evidence to corroborate his claim that its credibility was considered doubtful as to his claim of fear of harm from them that caused him to leave his country to come to Hong Kong to seek protection, that in any event even if his account of events were true that it was a case of private vendetta between him and those gangsters only without any official involvement that state or police protection 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 Liberia with a large population of 4.5 million people spread across a vast territory of more than 96,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Monrovia or Gbarnga where it would be difficult if not impossible for those gangsters to locate him.

8.  On 14 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local gangsters that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until almost 2 months later without any valid reason, that even if his account of events were true that his claimed risk arose from some personal dispute between him and those gangsters only without any official involvement that state or police protection would be available to the Applicant upon his return to Liberia as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 16 September 2019 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 repeated his claim as before and then put forward some grounds for his intended challenge which can be summarized as follows:

(1)  That the Adjudicator failed to take into proper or sufficient account of the serious criminal activities of the local gangs in Liberia or of the ineffectiveness and corruptions of the police and the authorities to deal with those gangsters or to control the exacerbation of crimes in his home country in assessing and rejecting the Applicant’s claim;

(2)  That the Adjudicator’s rejection of the Applicant’s claim without adequately applying the law or high standards of fairness is unfair and unreasonable;

(3)  That the Adjudicator failed to properly or adequately assess the relevant COI as to the poor security in the Applicant’s war-torn home country and the ineffectiveness and incapacity of the police to control the serious gangsters activities in Liberia that the Board failed to recognize that the Applicant’s life would be in serious danger upon his return that he should be entitled to non-refoulement protection.

11.  The Applicant did not request any oral hearing for his application so as to further elaborate how these grounds would assist or advance his case, as otherwise they are all just bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI in the assessment and determination of his claim. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 88 – 105 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Liberia, 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 considered 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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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

Form CALL-1