DJOSSOU NOUDEHOUENOU GERMAIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1900/2020

[2021] HKCFI 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1900 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Benin who arrived in Hong Kong on 7 June 2012 with permission to remain as a visitor up to 21 June 2012 when he did not depart and instead overstayed in Hong Kong, and on 11 July 2012 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Benin he would be harmed or killed by his step-brothers/half-siblings for refusing to comply with his father’s demand to convert his religion from Christianity to Islam. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Porto-Novo, the capital of Benin and was raised by his aunt as a Christian after his mother died shortly after giving birth to him. His mother was one of four wives of his father who lived in Village Gouako-Kotoclome in the city of Cotonou with his other wives and his children born to his other wives.

3.  In 2005 while attending a family gathering in his father’s home in Gouako-Kotoclome, the Applicant was demanded by his father to convert to Islam as his father and all his half-siblings were Muslims, and when the Applicant refused, his father threw into a rage, threatened to end all his financial support for the Applicant, and tried to attack him but the Applicant managed to make his escape and returned to his home district.

4.  In 2011 his father passed away in Gouako-Kotoclome, and after attending his father’s funeral, his eldest step-brother then threatened to kill him with black magic for refusing to comply with their father’s demand to convert to Islam, and tried to hit him but the Applicant managed to make his escape to flee back to his home village, but later when he heard that his stepbrother had hired some men to kill him, he became fearful for his life and departed Benin in April 2012 for China, and from there he later travelled to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 21 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 3 December 2019 the Director of Immigration (“the 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”).

6.  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 his half-siblings upon his return to Benin as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private family dispute between them 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 Benin with a large population of 11 million people spread across a vast territory of more than 112,000 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 Benin away from his home district in other large cities such as Togo where it would be difficult if not impossible for his half-siblings to locate him.

7.  On 9 December 2019 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 18 June 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 10 September 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s evidence as to his claim of disputes with his father and half-siblings over his refusal to convert his religion from Christianity to Islam and the resultant threats made against him, but found no reliable evidence of any real intention of his half-siblings to seriously harm or kill him, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed upon his return to Benin where the majority of the population are Christians and without any risk of any discrimination against him as a Christian in the country that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 23 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Benin, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.  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.

13.  Furthermore, on 29 December 2020 the Applicant filed an affidavit requesting to cancel his leave application.  

14.  For these reasons, and as for the reasons given that I am not satisfied there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to “cancel” his intended challenge, I accordingly dismiss 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