DWEH JOJO v. TORTURE CLAIMS APPEAL BOARD

HCAL 739/2020

[2023] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 739 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 46-year-old national of Liberia in West Africa who arrived from Ghana via Kenya in Hong Kong on 1 July 2017 as a visitor with permission to remain up to 15 July 2017 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 22 January 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Liberia he would be harmed or killed by the anti-government rebel group National Patriotic Front of Liberia (“NPFL”) as his father had served in the Liberian army fighting against them during the civil war in 1989. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Monrovia, Liberia where his father was a Colonel in the Liberian army and had fought against the NPFL rebels during the civil war which started in 1989 when the Applicant was only aged 13.

3.  To avoid the war, the Applicant and his family later moved to Grand Bassa where the Applicant got separated from his family amidst the chaos, and was taken in by another Liberian family which subsequently adopted him after he lost contact with his own family.

4.  In 1990 the Applicant moved with his adopted family to neighbouring Ivory Coast to avoid the Liberian civil war, and settled in the city coast of Abidjan, where the Applicant subsequently learnt of his father being killed in the fight against the rebels, while the rest of his family was also lost in the war.

5.  After leaving school the Applicant ran his own business selling clothes in Ivory Coast which he imported from Ghana to make his living.

6.  However, in 2017 after hearing from other Liberians who had also moved to Ivory Coast that the NPFL rebels have been going after those Liberian families for revenge for having members who had served in the Liberian army to fight against them in the civil war, the Applicant became concerned for his own safety in Ivory Coast given its proximity to Liberia, and so in about April 2017 he departed for Ghana and Kenya before arriving in Hong Kong on 1 July 2017 where he subsequently overstayed, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 14 November 2019 the Director of Immigration (“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”).

8.  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 the NPFL rebels upon his return to Liberia as low due to the absence of any past ill-treatment from them, that there is no evidence at all even on his own case of any threats ever made against him by NPFL, that since his adoption by another Liberian family years ago in 1990 that it is not accepted that the NPFL would have any information or knowledge of his relationship with his father for them to have any adverse interest in him, that there is no indication of any future intention of the Applicant to return to Liberia to face such risk, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, that reliable and objective Country of Origin Information (“COI”) show that the civil war in Liberia with NPFL has ended years ago with law and order since been restored in the country that it is not accepted that the Applicant would face any risk of harm from NPFL, and that if necessary reasonable internal relocation alternatives are available in Liberia with a large population of 4.8 million people spread across a vast territory of more than 110,000 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 the country away from any place with any rebel activities or his home district where it would be difficult if not impossible for anyone to locate him.

9.  On 25 November 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 25 March 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 April 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found no evidence even on the factual basis of the Applicant’s own case of any threats from the NPFL rebels against him or that they would have any adverse interest in him or any information of his background or relationship with his father given the fact that he has left Liberia all these years since 1990 that it is not accepted that he would face any risk of harm from NPFL upon his return to Liberia, that apart from Liberia he can always continue to stay in Ivory Coast to stay away from any such risk, and that in any event since the end of the civil war years ago that law and order have since been restored in Liberia that state protection would be available to the Applicant if necessary upon his return to the country as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 22 April 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 just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

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.  In the Applicant’s case, the Board rejected his claim essentially on its findings of no evidence or basis of any risk to him in Liberia for the thorough and detailed analysis and reasoning set out in paragraphs 45 – 92 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

14.  The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of 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.

15.  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.

16.  Furthermore, the Applicant recently filed two affidavits requesting to withdraw his application as all his problems in his home country have now been resolved and that he wants to go home.

17.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of no longer any problem returning to his home country, 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