|
HCAL 2328/2019
[2025] HKCFI 1287
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2328 of 2019
|
BETWEEN
|
| |
Yegbessi Romaric Bruno |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 13 August 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”) dated 29 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 August 2018 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is a Beninese national. He last entered Hong Kong on 11 June 2017 as a visitor and overstayed. He surrendered to the Immigration Department and made a non-refoulement claim on 14 July 2017. 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 rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “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 if returned to Benin or Nigeria, he will be harmed or killed by his paternal uncle because of their land dispute.
4. The Applicant, now aged 42, was born in Abomey, Benin. His father was a Beninese national and passed away in 2016. His mother is a Nigerian national and is living in Nigeria. When he was small, his family and he moved to Nigeria. He had two elder brothers, who died in a car accident in 2017. He is single. He had received six years’ formal education. He assisted his father in selling miscellaneous items at a kiosk in Nigeria since his childhood.
5. The Applicant claimed that his late father, being the eldest son of the family, had inherited a plot of land in Benin (the “land”) from his late grandfather before he was born. His father had a peaceful relationship with his uncle, who was a wealthy businessman and owned properties in Africa. His uncle often visited his father in Nigeria. They never had any arguments.
6. In around 2017, his late brothers made a trip to the land. When they returned, they told him and his mother that his uncle had threatened them not to go there anymore as the land now belonged to him. Their mother advised him and his brothers not to take any actions against his uncle because they were one family. A few days later, his elder brothers went to the land again. They died in a car accident on their way back to Nigeria. His neighbours and friends told him that the car accident might have been caused by his uncle. They also advised him not to fight against his uncle. He and his mother did not make any complaint to the police about his brothers’ death.
7. Since he was the only one left in his family who was entitled to inherit the land, the Applicant was worried that he would be his uncle’s next target. He therefore decided to leave Nigeria. He came to Hong Kong via mainland China to seek protection. While he was in mainland China, his mother told him over the telephone that his uncle had been to her home to ask for his whereabouts and that there were rumours that his uncle was locating him to kill him.
8. The Applicant claims that state protection was not available because the police in Nigeria and Benin are corrupt. He does not believe internal relocation viable, as his uncle has the financial resource to locate him in Nigeria and Benin.
The finding of the Board
9. The Applicant testified before the Board. The Board considered his case and his fear of his uncle are based on hearsay and suspicion only. It found his evidence regarding the land dispute was very vague and lacking in detail. He did not even know where the land was. His explanation is that he had no one to contact to obtain more information. The Board rejected his explanation as unpersuasive, as he should have had the information before he left Nigeria because it was necessary for him to form the conclusion that he had to leave Nigeria to remain safe. The quality of his evidence made it difficult for the Board to accept he had any genuine fear of his uncle.
10. The Board also found his evidence on crucial issues inconsistent. In respect of his father’s death, he told the Board that his father visited the hospital a couple of days before his death and he was told everything was clear. That is inconsistent with his evidence in his NCF that his father died after a long illness.
11. As to his fear of his uncle, he made a new allegation in his Notice of Appeal to the Board that his uncle was a very bad man and being a wealthy man in Africa, could do anything including harming others through juju, a kind of witchcraft. That allegation is inconsistent with his earlier evidence during the hearing that he had no knowledge of his uncle harming anyone else other than his suspicion regarding the car accident in which his brothers were killed.
12. In view of his vague and inconsistent evidence as well as his non-persuasive explanations, the Board found the Applicant was not a credible witness. It rejected there is any land dispute between the Applicant and his uncle. While giving him the benefit of the doubt, it accepted his father died of an illness and his brothers died in a car accident, the Board rejected his allegation that his uncle was involved in any of their deaths via juju or any other means. In the circumstances, the Board did not consider the Applicant would face any real risk of proscribed harm if refouled to Benin or Nigeria. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
13. 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
14. At the hearing, after the above legal principles have been explained to the Applicant, he confirmed he had no knowledge of the law and left it to the Court to look for errors of law on his behalf. He only reiterated his danger returning to his home country. He confirmed he had no complaint about procedural unfairness or irrationality in the Decision.
15. 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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability. It accepted part of the Applicant’s evidence, such as his father’s death, but found him incredible as regards the core issues of his claim, such as that his uncle was responsible for his father’ and brothers’ death. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
16. For the above reasons, the leave application is refused.
Dated the 3rd day of April 2025
| |
(Seline Sze)
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 03/04/2025
Yegbessi Romaric Bruno
Applicant’s ref. no:
Nil |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 03/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13363/18/9/124/BE23
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3191/18 (formerly RBCZ 10631/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|