HCAL 524/2018
[2019] HKCFI 750
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 524 of 2018
BETWEEN
Marshall Bill O
Applicant
and
The Adjudicator of the
1st Putative Respondent
The Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 51-year-old national of Liberia who last arrived in Hong Kong on 2 May 2008 up to 8 May 2008 when he did not depart and instead overstayed until he was arrested by police on 22 October 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he eturned to Liberia he would be harmed or killed by his paternal granduncle for refusing to convert his religion from Christianity to Islam. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born in Jorkpeh Town, Monrovia, Liberia to Christian parents, and like his six siblings he was also raised as a Christian. His father’s family however were all Islamic Muslims, of whom his granduncle, a powerful and influential man in Robertfield where his eldest son was the head of the mosque, had always tried to get the applicant’s family to convert their religion to Islam, and when his parents refused, there were frequent conflicts between the two families as a result.
3. In 1989 his parents separated and the applicant and his siblings followed his mother to move to Grand Bassa County, and his granduncle would from time to time come to try to persuade his mother to convert into Islam, but his mother would always refuse.
4. On 5 April 2005 the applicant’s father was shot dead in Nimba County, and the applicant suspected that he was murdered by his granduncle for refusing to convert into Islam. Shortly thereafter his granduncle came to his home with several men and demanded his mother and her children to convert into Islam, and when his mother refused, a quarrel broke out between them and the granduncle then left without further incident.
5. Several days later his granduncle came again with the same group of men and proposed that the applicant’s mother should move her family to Robertfield so that he could take care of them, and when she refused, the granduncle again raised the issue of conversion to Islam that a heated quarrel broke out followed by some scuffling between the parties that required the intervention of the police before the granduncle left angrily with his men.
6. A week later his granduncle returned with his group and again demanded that the applicant’s mother and her family to convert to Islam, and again when she refused a quarrel broke out during which his granduncle threatened that the applicant would die like his father if he still refused to convert into Islam.
7. To avoid any further confrontation with his granduncle, the applicant left Liberia in May 2005 for the Ivory Coast where he stayed for two weeks before moving on to Ghana and then to Thailand where he remained until 2007 when he travelled to China, and from there he would visit Hong Kong from time to time, and in his last visit in May 2008 he overstayed and raised a non-refoulement claim, for which he subsequently completed a Non- refoulement Claim Form on 2 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
8. By a Notice of Decision dated 18 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights (“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”).
9. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his granduncle upon his return to Liberia as low due to the low intensity and frequency of past ill-treatment from his granduncle and the absence of any injuries suffered by the applicant as a result, that there is no evidence that his father had been murdered by his granduncle or of any real intention on his part to cause any serious harm to the applicant or his family other than to try to persuade them to convert into Islam, that it was a private family dispute that after all these years it is unlikely that his granduncle would still have any adverse interest in him or his family when according to his mother that she had not heard from the granduncle since 2013, that in the absence of 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 Liberia with a large population of 4.2 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 work experience to move to other part of Liberia away from his home district in large cities such as Kakata or Gbarnga where it would be difficult if not impossible for his granduncle to locate him.
10. By a Notice of Further Decision dated 31 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
11. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 30 November 2015, and for which he attended an oral hearing on 5 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
12. In its decision the Board was doubtful about the applicant’s claim for non-refoulement protection which he did not raise when he arrived in Hong Kong until some five years later, that the applicant even on his own case had never suffered any severe ill-treatment under any of the applicable grounds, that in any event his problem with his granduncle was a private family dispute over religion that state or police protection would be available to the applicant, and that after all these years it is not accepted that his granduncle would still have any adverse interest in him or the desire to locate him all over Liberia upon his return to other areas away from his home district.
13. On 29 March 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 it he put forward the following grounds for his intended challenge:
(1) that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;
(2) that their decisions were not fair or reasonable as required by the Wednesbury test;
(3) that they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to Liberia; and
(4) that the adjudicator failed to give him sufficient time and opportunity to arrange for relevant evidence to support his non-refoulement claim as well as his appeal.
14. 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 Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him time or opportunity to provide relevant evidence for his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his present application or his hearing before me, he did not produce any additional evidence or additional grounds for his intended challenge. In the absence of any legal error or procedural unfairness being clearly or properly identified by the applicant in those decisions, I do not see any basis or merit in any of his grounds or complaints, or any prospect of success in his intended challenge.
15. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537 .
16. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim 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.
17. 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.
18. 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.
Dated the 24th day of May 2019.
(NG Ka-wing)
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 his 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 24 May 2019
Marshall Bill O
Applicant’s ref. no.:
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 24 May 2019
The Adjudicator of the Non-refoulement Claims Petition Office st Putative Respondent’s ref. no.:
The Director of Immigration nd Putative Respondent’s ref. no.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1