POUTIA HERVE MODESTE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2136/2020

[2025] HKCFI 2722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2136 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant’s counsel in open court;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant to issue the originating summons within 14 days from the date of this judgment and serve the same to the Board as respondent and the Director as interested party; and

3.  Costs of this application be in the cause of the judicial review and the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

Observation for the Applicant:

Introduction

1.  This is an application by Mr Poutia Herve Modeste (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 October 2020 (“Board’s Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 3 July 2015 (“2015 DOI Decision”) and 30 June 2017 (together “DOI Decisions”) in refusing the Applicant’s claim for non‑refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Central African. He claimed to have been born on 1 January 1983 and lived in Bimbo. He received 13 years of education and had 10 years of work experience.

3.  The Applicant claimed that his father was the commander of the Presidential Guards under the former President of the Central African Republic (“CAR”), President Bozize (“Bozize”). The Applicant’s father was tasked with fighting against an alliance of rebel groups called “Seleka”. He had captured 5 Seleka people and handed over them to Bozize.

4.  The Applicant joined the Craftsman Association of a pro-Bozize political party known as the National Convergence “Kwa Na Kwa” (“KNK”) in 2009 but he did not hold any position in KNK. He was in the construction or building business and he hinted that his business benefited from his father’s political connections (§45 of the Board’s Decision).

5.  Bozize’s government was overthrown by the Seleka rebels in 2013. The Applicant’s brother was in the army and he died fighting the Seleka rebels on around 13 March 2013. His father was taken away by the Seleka soldiers on 12 April 2013. The Applicant’s family home was raided by the rebels on 13 April 2013. On 15 April 2015, the body of the Applicant’s father was discovered with signs of torture.

6.  The Applicant heard that both the Seleka rebels and the Central African Armed Forces (“FACA”) were looking for him. He obtained a passport and a China visa in around October 2013 but did not leave the country immediately because he needed to withdraw money from his bank.

7.  The Applicant was kidnapped in early November 2013 while traveling to the bank (“Kidnapping Incident”). The Applicant was attacked by a gunstock and he suffered from a bleeding nose. He was taken to a barrack called Camp de Roux (“Camp”) which was guarded by the FACA and the Seleka soldiers. A person in charge of the Camp told the Applicant that the Applicant’s father mistreated him in the past and that he would kill the Applicant.

8.  The Applicant learnt that the inmates at the Camp were supporters of the Bozize regime and one of them was a minister of the Bozize government. They were tortured and threatened with death unless they gave up the information sought by the guards. The Applicant also heard stories about some inmates being taken away and never returned to the Camp. The Applicant managed to escape after two weeks of detention. He returned to his home on around 17 November 2013 and hid inside.

9.  The Applicant bought an air ticket with the help of his friend in late December 2013. While waiting for his departure, he received many calls asking him to meet up to discuss business (“Phone Calls”) but he ignored all of them. He suspected the callers were actually the Seleka rebels or the FACA. He left the country via the official channel at the Bangui M’Poko International Airport on 14 January 2014.

10.  The Applicant claimed that due to the actions by his father and/or the KNK, he could not go back to the CAR because of the risks of harm from the following people or faction (“Enemies”):

(1)  Rombo Yekatom, the head of anti-Balaka in prefecture Lobaye, prefecture Ombellampoko, who had a grudge against the Applicant’s father for replacing his post in the army during the reign of Bozize;

(2)  some volunteers of the Seleka; and

(3)  the FACA.

11.  The Director assessed the Claim on the following grounds under the unified screening mechanism:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

12.  By the DOI Decisions, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decisions. The Board rejected and dismissed the Appeal.

13.  On 27 October 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. On 11 April 2025, I granted leave for the Applicant to amend the Form 86. The Applicant filed the Amended Form 86 (“Amended Form 86”) on 14 April 2025.

14.  The Applicant filed his first supporting affidavit on 27 October 2020. He filed his second supporting affidavit on 10 April 2025. In the Amended Form 86, the Applicant named the Board as the proposed respondent and the Director as proposed interested party.

The Board’s Decision

15.  The Applicant had no trouble with the Enemies before Bozize was overthrown apart from being threatened by unnamed persons he did not know. He reported the threats to his father who apparently did not take it seriously. The Board found that the then risk of harm to the Applicant, real or perceived, was small.

16.  After the overthrowing of Bozize, apart from the Kidnapping Incident, the Enemies did nothing to harm him. The Applicant did not suffer any serious injury at the hands of the Enemies while being detained by them. Before his detention, the Enemies had done nothing to harm him seriously. They did not inflict serious physical harm on his family. Past incidents did not support his claim that the Enemies intended to harm him seriously.

17.  For reasons set out in §§44-49 of the Board’s Decision, the Board assessed that the Applicant’s risk of harm, on account of his father’s past conduct and association with the overthrown regime of Bozize, was low.

18.  For reasons set out in §50 of the Board’s Decision, the Board found that the Applicant’s claim that he had to take precautionary measures to flee the country was not credible. The Board further found that the way in which he fled the country did not support the perceived fear the Applicant claimed he had at the time.

19.  After considering the relevant country of origin information (“COI”) materials, the Board was of the view that since the overthrown of the Bozize regime, the social and political situation of CAR continued to improve with the joint effort of the government and international peace-keeping forces.

20.  The Board concluded that the motivation for the Enemies to harm the Applicant was low. The death of his father happened during the aftermath of overthrowing Bozize because the perpetuators wanted to get to his hoard of weapons and money. There was nothing to do with the Applicant as he was not involved in his father’s activities. Nothing happened to the Applicant’s uncle and the Applicant’s partner and their children. The Board assessed that the future risk of harm that the Applicant feared was low. The Board found that the Applicant had failed to establish that he would be at risk of persecution, or any harm that warrants non-refoulement protection or that his inalienable right to life would be at risk of being deprived or derogated. It was on such basis that the Board rejected and dismissed the Appeal.

Grounds for intended judicial review

21.  In the Amended Form 86, the Applicant put forward 3 grounds for his intended judicial review, namely:

(1)  wrong assessment of credibility (Ground 1);

(2)  failure to apply the correct test in assessing the Applicant’s risk of harm (Ground 2); and

(3)  wrong assessment of country conditions (Ground 3).

22.  The Applicant was represented by Mr Ngan of counsel instructed by Daly & Associates at the hearing of the leave application on 28 April 2025 (“Court Hearing”).

Ground 1

23.  The Applicant contended that the Board erred in failing to apply, or properly apply, the well-established principles in international refugee law when assessing the credibility of the Applicant’s case and his assessment was also procedurally unfair and irrational.

24.  Mr Ngan set out in §14 of his skeleton argument for the Applicant (“A’s Skeleton”) certain factual findings made by the Board. (See also §115 of the Amended Form 86) Mr Ngan submitted that the Board’s finding on the Applicant’s credibility was not supported by the aforesaid findings of fact. He submitted that the Board’s Decision was inherently contradictory, absurd and totally against the weight of the evidence.

25.  Mr Ngan referred to the Board’s finding that the Applicant was abducted in the Kidnapping Incident (“Abduction”) merely because of his own construction business or a summons requiring him to be examined before the Division of Research and Investigation (“Summons”) but not related to the political background of the Applicant and his family. Mr Ngan submitted that the Board placed heavy reliance on a newspaper report to make his finding. He contended that the Board’s conclusion on this matter was blatantly against the weight of the evidence accepted by the Board.

26.  Mr Ngan further criticized the Board for not putting to the Applicant that the cause of the Abduction was solely related to the Applicant’s construction business / the Summons but not his political background. He submitted that the Applicant was denied the opportunity to reply to, explain or otherwise deal with that intended allegations or accusation. He submitted that the Board’s conclusion in this respect was procedurally unfair and in violation of the principle of providing the Applicant a fair opportunity to be heard if the decision-maker was minded to make adverse finding against him.

27.  Mr Ngan also referred to the Board’s finding in respect of the Phone Calls. Mr Ngan complained that while accepting that the Applicant had received the Phone Calls, the Board rejected the Applicant’s evidence that they were traps for capturing him but said that there was “nothing uncommon” for potential customers asking to meet the Applicant for discussing business.

28.  Mr Ngan submitted that the Board’s aforesaid proposition was never put to the Applicant. The Board criticized the Applicant for not “verifying” the “sincerity” of the callers and not making any effort to find out if the proposed deals were genuine but the Applicant was never asked any questions in this respect.

29.  Mr Ngan contended that the failure of the Board to put the Applicant on notice and to give him a fair opportunity to respond to matters that were said to be adverse to his credibility amounted to procedural unfairness.

30.  Mr Ngan complained that the Board took the view that the Phone Calls had to have something to do with the Applicant’s failure to answer the Summons but this opinion was never put to the Applicant. (§24 of A’s Skeleton)

31.  Mr Ngan submitted that the Board’s finding that the Enemies did not have any grudge against the Applicant because the Applicant’s business was not that lucrative was not logical. As the Board accepted that complaint of the Enemies was that the Applicant had taken all opportunities away from them, whether the Applicant was able to make a lot of money from such opportunities was neither here nor there.

32.  Mr Ngan submitted that the Board’s finding that the youngsters, to whom the Applicant had refused to provide a job, was able to join the rebel or army later (and hence made a living), and, therefore, their grudge against the Applicant was only “small”, was also not logical. As the Board had accepted that the youngsters had grudge against the Applicant because he had refused to provide them a job, it did not necessarily follow that such grudge would vanish merely because they had something else to do.

33.  Mr Ngan submitted that when finding the Applicant not credible, the Board gave significant weight to the Applicant’s allegedly conflicting evidence in respect of his journey to the airport. Mr Ngan contended that the journey to the airport clearly did not go to the “core” of the Applicant’s non-refoulement claim. It was not a material fact and was not material to the credibility of the Applicant’s claim.

34.  Mr Ngan submitted that it was irrational for the Board to give significant weight to the mere fact that the Applicant did not raise his non-refoulement claim at the immigration counter of the airport upon his arrival in Hong Kong but failed to take into account, or failed to give proper weight, to the Applicant’s prompt asylum claim to UNHCR in Hong Kong. Mr Ngan submitted that the Applicant had given valid reasons for not raising his protection claim upon arrival in Hong Kong and the Board failed to consider all relevant matters in the round.

35.  Mr Ngan contended that in rejecting the Applicant’s non-refoulement claim, the Board effectively isolated evidence, discounted or dismissed it individually, and consequentially disbelieved the Applicant’s subjective fear. He submitted that the Board identified 3 relevant risk factors of the Applicant’s case, namely past incidents, personal circumstances and country conditions, and proceeded to consider these 3 factors separately, without considering all relevant matters as a global assessment of credibility. Mr Ngan complained of the Board “compartmentalization of evidence”.

Ground 2

36.  The Applicant contended that the Board’s approach to the absence of past serious injuries on the part of the Applicant was an error in law.

37.  Mr Ngan submitted that the Board’s approach to the absence of past serious injuries on the part of the Applicant was an error in law. He referred to the following observation of the Board stated in §49 of the Board’s Decision:

“ However no attempt was made to harm [the Applicant] at all during the two weeks’ detention and this is inconsistent with his claim that they wanted to harm him.”

38.  Mr Ngan submitted that: “As a matter of principle, there is no requirement that a claimant must have sustained injuries, or serious injuries, in the past for establishing that s/he will have a real risk of harm if s/he returns to his or her home country.” (§49 of A’s Skeleton”)

39.  Mr Ngan contended that the Board’s reliance on absence of past serious injuries to form his view on future risk of harm to the Applicant was an error in law.

Ground 3

40.  The Applicant contended that:

(1)  the Board erred in failing to adopt a fair approach to the COI before him;

(2)  the Board failed to make sufficient inquiry into the relevant country conditions; and

(3)  the Board failed to give adequate reasons for rejecting or discounting COI in support of the Applicant’s case.

41.  Mr Ngan submitted that the Board effectively “cherry-picked” those part of COI supporting the Board’s conclusion but failed to consider, or properly consider, those parts supporting the Applicant’s non-refoulement claim.

42.  He also complained that the Board failed to make sufficient inquiry into the relevant country conditions and failed to give adequate reasons for rejecting or discounting COI supporting the Applicant’s case.

43.  Mr Ngan submitted that there were COI before the Board supporting the Applicant’s case and refuting the Board’s view. Thus, there was no basis for the Board’s “optimistic” conclusion on the relevant country conditions.

44.  Mr Ngan referred to §163 of the Amended Form 86 to submit that: “the Applicant’s complaint under this ground of review is justified by the current country conditions of CAR, which show that the relevant human rights condition continues to be a serious human right concern for the international community.” (original underlining) (§61 of A’s Skeleton)

Discussion and ruling

45.  In a judicial review, the court does not step into the shoes of the decision makers.

46.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

47.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Ground 1

48.  I accept that the complaints raised by the Applicant on findings made by the Board in respect of the Abduction, the Phone Calls and the grudge of the Enemies against the Applicant are reasonably arguable in his intended judicial review. However, I do not see that the Applicant’s other complaints are reasonably arguable for reasons set out below.

49.  The Board found that: “The way in which [the Applicant] fled the country does not support the perceived fear he claims he had at that time.” (§50 of the Board’s Decision) Mr Ngan contended that “the journey to the airport clearly did not go to the ‘core’ of the Applicant’s non-refoulement claim. It was not a material fact. It is difficult to see how the Applicant went to the airport was material to the credibility of his claim. There could be valid reasons for such minor inconsistencies e.g. long lapse of time.” (§35 of A’s Skeleton)

50.  As pointed out in the Nupur Mst case (supra), assessment of evidence is within the province of the Board and the court would not intervene unless there was error of law, procedural unfairness or irrationality. The Board noted that: “At first [the Applicant] claimed that he walked all the way to the airport to avoid trouble in using public transport.” (§50 of the Board Decision) The way in which the Applicant fled his country was a considered decision to avoid his feared risk. It was part and parcel of the Applicant’s claim. Whether this go to the “core” of the Applicant’s claim is neither here nor there. It is certainly a relevant matter. I do not see error of law, procedural unfairness or irrationality for the Board to take into account such matter in considering the risk of harm claimed by the Applicant. In disputing such finding of the Board, Mr Ngan sought to challenge the finding of facts of the Board which is not permissible in a judicial review without error of law, procedural unfairness or irrationality on the part of the Board in making such finding.

51.  The Board made adverse finding against the Applicant for not claiming protection immediately upon arrival in Hong Kong. The Board stated in §50 of the Board’s Decision that: “Yet when [the Applicant] arrived in Hong Kong, he did not disclose to the immigration officer that he was seeking protection.” (emphasis added) Mr Ngan submitted that: “the Applicant gave valid reasons for not raising his protection claim upon arrival in Hong Kong.” (emphasis added) (§36 of A’s Skeleton) Whether the reasons provided by the Applicant were “valid” or not was a matter of mixed law and fact to be found by the Board. The Board noted in §50 of the Board’s Decision that the Applicant “offered a variety of reasons”. The Board had not overlooked the explanation provided by the Applicant.

52.  Mr Ngan further submitted that: “it is difficult to see why such explanations were ‘most puzzling’.” (§37 of A’s Skeleton) This was misconceived. In §50 of the Board’s Decision, the Board stated that: “It is most puzzling that [the Applicant] categorically said he had no intention to seek protection at the time.” It was this self‑incriminating evidence given by the Applicant which the Board found “most puzzling”.

53.  For the reasons set out in §50 of the Board’s Decision, the Board “found that [the Applicant’s] claim that he had to take precautionary measures to flee the country is not credible.” Mr Ngan further submitted that: “It is irrational for the Board to give significant weight (‘most puzzling’) to the mere fact that the Applicant did not raise his non-refoulement claim at the immigration counter of the airport upon his arrival in Hong Kong. He failed to take into account, or failed to give proper weight, to the Applicant’s prompt asylum claim to UNHCR in Hong Kong.” (emphasis added) (§39 of A’s Skeleton)

54.  The Board did not find against the Applicant on the “mere fact” of the Applicant not raising his protection claim at the immigration counter of the airport upon his arrival in Hong Kong. As pointed out above, the Board was “most puzzling”, not by the Applicant’s failure to claim protection upon arriving Hong Kong, but by his self‑incriminating statement of having no intention to seek protection at the time. The failure of the Applicant to seek protection at the first available opportunity was certainly relevant to the Board’s finding on the Applicant’s claimed perceived risk at the time. The fact that the Applicant had made asylum claim to UNHCR was certainly known to the Board as it was referred to in §6.54 of the 2015 DOI Decision. The fact that the Board had not expressly referred to the Applicant’s asylum application to UNHCR in the Board’s Decision is neither here nor there as the Applicant “categorically said that he had no intention to seek protection at the time.”

55.  I do not see the Applicant’s complaint against the Board’s findings in respect of his journey to the airport and his failure to raise protection claim at the immigration counter of the airport upon his arrival in Hong Kong, reasonably arguable in his intended judicial review.

56.  In assessing the risk of harm alleged by the Applicant, the Board identified 3 relevant risk factors and considered each factor one by one. After considering each factor, the Board formed a view on the direction pointed to by that factor. After considering all the factors, the Board balanced all the pointers and came to a conclusion on the risk of harm faced by the Applicant. I do not see this as a “compartmentalization of evidence” or suggestion of failure to take into account all relevant matters in the round as contended by Mr Ngan.

57.  In §145 of the Amended Form 86, the Applicant criticized the Board of not taking into account the Applicant’s father being kidnapped and tortured to death, the Phone Calls and the Enemies’ continuous attempts to located the Applicant. All the aforesaid matters were known to the Board and had been considered by the Board in the Board’s Decision. The Board would certainly have all these matters in mind when dealing with the Applicant’s claimed risk of harm. I do not see that the Board needed to repeatedly referred to all the matters considered by him expressly in every ruling made by him. I do not find such contention reasonable arguable in the Applicant’s intended judicial review.

58.  Save as to the above, having considered the Board’s Decision and the submissions of the Applicant’s counsel, I agree that other complaints raised in Ground 1 in respect of the Abduction, the Phone Calls and the grudge of the Enemies against the Applicant, are reasonably arguable with a realistic prospects of success in the Applicant’s intended judicial review.

Ground 2

59.  The absence of past serious injuries on the part of the Applicant was certainly a relevant consideration (though not the sole consideration) in assessing his future risk of harm. Mr Ngan fairly pointed out that during the hearing of the Appeal, the Board had rebutted the submissions of the counsel for the Director in submitting that the Applicant was not harmed while in detention. (§52 of A’s Skeleton) This showed that the Board had not overlooked the principle that absence of past serious injuries was not the sole consideration for assessing future risk of harm. I do not see Ground 2 as a ground reasonably arguable in the Applicant’s intended judicial review.

Ground 3

60.  It is not uncommon for COI from different sources providing different (even contradicting) pictures of the conditions of the risk country. The Board after considering all the relevant COI would no doubt prefer some to others. I do not see this as “cherry-picking”.

61.  As pointed out in the Nupur Mst case (supra) assessment of COI materials was in the province of the Board and the court would not intervene unless there was error of law, procedural unfairness or irrationality when the Board made the assessment.

62.  In §51 of the Board’s Decision, the Board referred to COI materials submitted by the Applicant in support of his case. The Board agreed that: “In short, the law and order situation was generally chaotic while the [Applicant] was still in CAR.” The Board then discussed in §52 of the Board’s Decision the situation of CAR since 2013 after Bozize was overthrown in March 2013. The Board found that: “Since then, social and political situation continued to improve with the joint effort of the government and international peace-keeping forces.” (§53 of the Board’s Decision) The Board then referred to various COI dated 2019 (§§53-54 of the Board’s Decision) to come to the conclusion that “the political situation [in CAR] is stable and with the assistance of international community and organizations the government is continuing its effort to improve the human rights condition and to combat human rights violations.” (§56 of the Board’s Decision)

63.  In §159 of the Amended Form 86, the Applicant referred to various COI submitted by him to the Board supporting his case and refuting the Board’s view. These COI materials were dated January 2015 to November 2017 covering the post-Bozize period.

64.  I note that the COI referred to in §159 of the Amended Form 86 had not been discussed individually in the Board’s Decision. I am of the view that it might not be practicable for the Board to discuss in the Board’s Decision each and all COI which he had considered.

65.  In the Board’s Decision, the Board relied on COI dated 2019. These COI were more up-dated than the COI referred to in §159 of the Amended Form 86. As the Board was considering the country conditions of CAR after the reign of Bozize, it is quite obvious that the Board preferred the up-dated COI to those out-dated COI referred to in the Amended Form 86. I do not see that it is reasonably arguable to contend in this case that the Board had not given reasons for rejecting or discounting the COI in support of the Applicant’s case.

66.  I further note that the COI relied on by the Board were dated 2019 when hearings of the Appeal before the Board took place in 2016 and 2017. At the Court Hearing, I asked Mr Ngan whether the Board had invited the Applicant to comment on those up-dated COI. Mr Ngan answered in the negative. In such case, it is reasonably arguable that the Board had not observed the high standards of fairness required for non-refoulement cases and that it was procedurally unfair for the Board to rely on COI to make ruling adverse to the Applicant’s claim without giving the Applicant an opportunity to comment on the same.

67.  In §163 of the Amended Form 86, the Applicant referred to COI dated 2024/2025 to show that the current conditions of CAR. As the material time for assessing the claimed risk of harm was the time of decision of the Board, i.e. 9 October 2020, the current conditions of the risk state is irrelevant and will not constitute grounds for judicial review of the Board’s Decision.

Conclusion

68.  I grant the Applicant’s application for leave to apply for judicial review on the grounds that:

(1)  in finding credibility of and risk of harm to the Applicant, there were procedural unfairness in that the Applicant was denied the opportunity to reply to the following adverse findings against him:

(a)  the cause of the Abduction was solely related to his constructions business / the Summons but not his political background; and

(b)  the Phone Calls were “normal” phone calls for business purposes or had to have something to do with the Applicant’s failure to answer the Summons, but not a trap for capturing the Applicant;

(2)  the Board’s following findings were inconsistent with the Applicant’s evidence accepted by the Board:

(a)  the Enemies did not have any grudge against the Applicant because the Applicant’s construction business was not lucrative; and

(b)  the youngsters, to whom the Applicant had refused to provide a job, only had “small” grudge against the Applicant, as they were able to join the rebel or army later to make a living;

(3)  the Board had not observed the high standards of fairness required for non-refoulement cases and it was procedurally unfair for the Board to rely on COI obtained after the hearing of the Appeal without giving an opportunity for the Applicant to comment on the same.

69.  I direct the Applicant to issue the originating summons within 14 days from the date of this judgment and serve the same to the Board as respondent and the Director as interested party.

70.  Costs of this application be in the cause of the judicial review and the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

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