DIGGS BENJAMIN W ALIAS BENJAMIN DIGGS v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 969/2018

[2021] HKCFI 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 969 of 2018

 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Liberia who arrived in Hong Kong on 3 November 2010 with permission to remain as a visitor up to 17 November 2010 when he did not depart and instead overstayed, and on 26 May 2011 he was arrested by police for various offences including fraud for which he was subsequently convicted and sentenced to prison for 10 months.  Upon his discharge from prison on 14 December 2011 and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Liberia he would be harmed or killed by the government authorities for being a former member of the rebel group National Patriotic Front of Liberia (“NPFL”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Monrovia, Liberia.  After leaving school he joined the NPFL in 1993 and participated in their fighting with the government, but in 1995 he left NPFL and the country for Ivory Coast and then Sierra Leone until 2001 when he returned to Liberia after the NPFL’s leader Charles Taylor won the election and became the country’s president.

3.  However, in 2003 Charles Taylor was forced to step down from his presidency and was subsequently arrested and put in prison, the Applicant became concerned for his own safety and therefore fled to NPFL’s stronghold in Buchanan and then to Greenville until November 2003 when he again left the country for Ivory Coast.

4.  In 2005 the Liberian government reached a general cease fire with the rebels, and the Applicant felt it was safe to go home, and so he returned to Liberia in June 2005 where he stayed without incidents until 2008 when the country elected a new president who threatened to arrest all the former rebels, and so in June 2008 the Applicant left Liberia for Ghana where he ran some garment business, but when his business went down in 2010, he left Ghana and arrived in Hong Kong on 3 November 2010 for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 21 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  Whilst released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 5 December 2012 for the offence of obtaining property by deception and was subsequently convicted and sentenced to prison for 10 months.       

6.  By a Notice of Decision dated 27 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that there will be any real risk of harm upon his return to Liberia due to the absence of any past ill-treatment from anyone, that there is no evidence that the Applicant was being pursued by the Liberian authorities or anyone given the fact that he had been able to come in and out of the country without difficulty all these years, that in any event he was a low level member of NPFL with no rank and had never been charged that it is doubtful that there would be any adverse interest in him, that other than the NPFL’s leader being arrested and sentenced to prison that no other member had been arrested or charged by the authorities, that there is no evidence of any threats or harm from any terrorist groups such as Boko Haram against the Applicant, that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Liberia with a large population of 4.3 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 part of Liberia away from his home district where it would be difficult if not impossible for anyone to locate him.

8.  On 8 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 14 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 25 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted that the Applicant may have been a NPFL fighter during the Liberian civil war in the 1990s which led to the eventual imprisonment of its leader Charles Taylor but found no evidence including COI material to support the Applicant’s assertion that a low level rank and file NPFL fighter like him would be at risk of arrest or prosecution by the Liberian authorities, that even on his own case that he has never been accused, charged, interrogated, arrested, detained, imprisoned or harmed in any way in Liberia despite his frequent departures and returns to the country, or any evidence to suggest that he would be a particular target for any Jihdist or terrorist groups, and that being an able-bodied adult with education and working experience that there was simply no circumstance that would make it unreasonable for him to return to Liberia that his claim for non-refoulement protection failed on all applicable grounds.      

10.  On 30 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his written submission dated 30 June 2020 he put forward the following grounds for his intended challenge:

(a)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(b)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(c)  Procedural unfairness in that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(d)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(e)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which had resulted in it making groundless speculations that it would be safe for the Applicant to return to his home country; and

(f)  That the hearing bundle was not provided to the Applicant earlier or with interpretation thereby causing him confusion and lack of understanding in his preparation for his appeal and unfairly questioning his credibility.    

11.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what sources of news relied on by the Board that were unofficially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable.

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.  The only other complaint which the Applicant appeared to have made with an elaboration was about the hearing bundle being provided to him late for his appeal hearing before the Board and thereby causing confusion and misunderstanding in his preparation for his appeal. 

14.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the alleged risk of his claim simply did not exist and that it is not unreasonable or unsafe for him to relocate to anywhere in 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.       

16.  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. 

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave 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