SHERIFF SEKOU AMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1592/2019

[2024] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1592 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;

Order by Deputy High Court Judge To:

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   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 11 June 2019 for leave to apply for judicial review (the “leave application”) of a decision on the “appeal against a torture claim decision” dated 29 April 2019. He did not identify the decision maker or the proposed respondent, but named the TCAB, presumably meaning the Torture Claims Appeal Board, as the proposed interested party.

2.  The Court’s enquiries revealed that the Applicant is a Liberian national.   He entered Hong Kong on 26 April 2017 as a visitor and was permitted to remain until 10 May 2017.  He overstayed and surrendered to the authorities on 11 May 2017.  On 13 March 2018, he raised a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Notice of Decision dated 30 October 2018 (the “Notice”) issued by the Director of Immigration (the “Director”).  His appeal against the Notice was dismissed by the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 26 April 2019 (the “Decision”).  He now applies for leave to apply for judicial review of that Decision.  Neither the Director nor the Board had made any decision dated 29 April 2019 in respect of the Applicant.  That date is probably a typographical error and refers to the date of the Board’s Decision four days later.  Pulling all these facts together, it is obviously the Applicant’s intention is to seek judicial review of the Decision of the Board dated 26 April 2019 dismissing his appeal against the decision of the Director in his Notice dated 30 October 2018.  Accordingly, leave is granted to amend his Form 86 as aforesaid to give effect to his intention.

3.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.  

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 that he will be harmed by a religious society known as the Poor Society upon his return to Liberia because he refused to join them.

5.  The Applicant, now aged 30, was born in Bakidu Village, Lofa County, Liberia.  He has one brother and two sisters living with his mother in Liberia.  He received education up to Class 12 and had been a football player in Liberia for ten years. 

6.  He claimed that it was a custom in his village that all men joined the Poor Society after reaching the age of 17, while all women joined the Sande Society.  He did not know much else about the Poor Society except that its members had to worship a particular god.  His parents were both Muslims but were also forced to join the societies when they turned 17.  Being a Muslim, the Applicant did not want to join the Poor Society.  To avoid his joining the Poor Society, his parent sent him to live with his uncle in New Voinjama of Voinjama in 2003.  After his uncle passed away in 2014, the Applicant moved to Monrovia and worked as a football player.

7.  In 2017, the Poor Society threatened to kill his parents if they failed to have the Applicant returned to the village to join the Poor Society.  His mother warned him that the Poor Society would send sickness on him if he refused to join.  The Applicant ignored those threats.  However, two weeks after he received the warning, he developed a large, painful sore on his leg which bled and was unable to walk.  The doctors could not identify the cause of the problem and the medicine could not help him.  Believing that his condition was caused by black magic, he prayed at a mosque.  After daily prayers at the mosque for over two months and three weeks, he was able to walk again, although he sustained a large scar and constant pain.

8.  Fearing for his life, the Applicant decided to flee Liberia.  He left Liberia for Guangzhou on 17 April 2017 where he stayed until he came to Hong Kong on 26 April 2017.

9.  In early 2018, the Applicant’s father quit the Poor Society.  Suddenly, he became ill and subsequently passed away.  The Applicant and his mother believe the Poor Society caused the illness through black magic in retaliation.  The Applicant does not consider internal relocation within Liberia viable due to the society’s ability to harm him through black magic anywhere in the country.  He also feared reporting the incidents to the police, as he believes it would exacerbate the situation and lead to the Poor Society killing him.  He did not sought assistance from Liberian authorities for similar reasons.

The finding of the Board

10.  The Applicant testified before the Board.  His case is solely rested on his oral and written assertions.  He has no independent evidence to corroborate his assertions.  The Board noted several significant irregularities between his testimony to the Board and his claim to the Director about important aspects of his claims about past events in Liberia.  First, contrary to what he said in his NCF, he told the Board that everyone in his village, boy or girl, had to join one society, namely the Sande Society at the age of 15 and not the Poor Society for men and Sande Society for women.  The Board discussed with the Applicant about some independent and credible country of origin information about secret societies in Liberia and other West African states.  The information indicated there are two main and separate societies in Liberia, the ‘Poro Society’ for men and the Sande Society for women.  This is inconsistent with the Applicant’s testimony to the Board that there was only one society for both men and women.  It is also inconsistent with his confused evidence in the NCF when he was unable to name the society for men as the ‘Poro Society’ and referred to it as the ‘Poor Society’.  His explanation was that he does not know much about the societies and he only knows what his mother told him.

11.  Most significantly, his evidence as to when he became inflicted with a painful sore by the Poor Society for refusing to return to the village, which formed part of the centrepiece of his claim, was inconsistent and confused.  In his NCF, he said he lived in Monrovia for about three years without incident from 2014 to 2017 and that mysterious and bad things, ie the sore in his left leg and his father’s death, began to happen to him after his parents told him about the demand for his return to the village in 2017.  But he told that Board that the sore developed about three years before he left Liberia, indicating that he had come to the adverse attention of the secret society as early as 2014.  He tried to reconcile the inconsistency by saying that the sore came and went since 2014 but got much worse towards the end in 2017.  In the face of the clear and unambiguous wording in the NCF, the Board rejected his explanation.  He then tried to put the blame on the immigration officer for misunderstanding his evidence at the screening interview.  That was also rejected by the Board as the record of interview had been read back to him and he had the opportunity to correct any errors or misunderstanding before he signed.  He also gave conflicting accounts about his place of birth and duration of stay in Voinjama and Monrovia.  The Board held that if he had experienced the alleged events personally in the past, he would not have given contradicting evidence about them. 

12.  The Board found the Applicant is not a reliable witness, his claim was not credible and that he had been embellished, exaggerated and fabricated his evidence in part to create a claim for protection.  It rejected the centrepiece of his case in its entirety.  The Board does not accept that the Applicant or any member of his family was or is a person of adverse interest to a secret society in Liberia at the time he left the country in April 2017.  It held that he embellished, exaggerated or fabricated part of his evidence in order to seek protection and that none of the events which formed the centrepiece of his case, such as the requirement to join the Poor Society, the spiritual attack on him and the murder of his father by black magic had occurred. 

13.  Having dismissed the only ground for claiming protection, the Board found that the Applicant had failed to establish that he will be subject to any of the proscribed risks of harm upon his return to Liberia and hence he had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM.  Accordingly, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

14.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

15.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he only reiterated that he could not return to Liberia because the people who wanted to harm him will not rest until they found him and harmed him.  He had been invited by the Court via its letter dated 16 November 2023 to advise the Court of his first language and to file submissions.  He did not respond.

16.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Liberia.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Discussion

17.  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.  The Board found the Applicant’s evidence incredible and rejected his case in its entirety.  He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault. 

Conclusion

18.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

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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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