BASSALADJI KOFFI JONAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2238/2018

[2021] HKCFI 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2238 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:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 April 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 12 October 2018 (the “Decision”).  

2.  The Applicant is a national of the Republic of Benin in Africa.  He entered Hong Kong as a visitor and overstayed since 23 December 2016.  He surrendered to the Immigration Department on 18 January 2017. He was released on recognizance on the same day.  On 23 January 2017, he applied for a non-refoulement protection claiming that he is in danger of being harmed or killed by his step mother and step brothers (collectively, “his enemies”) with whom he has a dispute over the inheritance of his late father’s estate.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Notice, the Director rejected his claims.  On 17 April 2018, he lodged an appeal to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 12 October 2018. 

4.  On 15 October 2018, the Applicant apply for leave to apply for judicial review of the Decision.  He specifically requested a hearing if leave is not granted on paper.  Having reviewed the papers, the Court considered the application suitable for paper determination without a hearing and that the application has no merit. Accordingly, the Court issued notice of hearing to the Applicant.  Three hearings had been scheduled for the Applicant.  He did not turn up.  At the first two hearings, the court staff called the Applicant on his mobile phone, he did not answer.  At the third hearing, the court staff called the Applicant and found that the telephone service had been suspended.  Hence, the Court proceeded to make this determination on paper.    

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.  The Applicant said that his father passed away in mid-2013.  His two step brothers returned from the United States in November 2013 to attend the funeral.  A few months later, his mother had a dispute with his step mother because she suspected the step mother wanted to take away the Applicant’s share of his father’s estate.  He relied on three incidents in support of his fear of harm and risk.

7.  First, in or around April 2015, he had drinks with his friends in a bar.  After he left, he was told by his friends that a number of armed men went to the bar holding his picture looking for him and asking his whereabouts.  He reported the matter to the police but there was no following up.

8.  Second, in May 2015, while he was riding home on his motorcycle, he was intercepted by car.  He walked up to the car and saw four to five people inside in plain clothes.  They claimed to be policemen.  The Applicant ran away because he thought policemen in Benin usually wore uniform.  Later, he returned to retrieve his motorcycle.  He said if the police wanted to arrest him, they would have seized his motorcycle. He believed the people in the car were sent by his enemies.  His mother made a report to the police.

9.  Third, a month later, ie June 2015, he found he could not move his left leg.  He sought medical treatment from First Covenant Hospital in Lagos, but there was no improvement. His mother told him that his condition could have been caused by witchcraft practised by his enemies.  Then, he fled to Hong Kong.

10.  The Applicant said he would not be able to obtain protection from the police or the state authority because they would only offer protection to the rich and influential people. He claimed that it is not possible for him to relocate to other parts of Benin because his enemies would be able to locate him and execute spiritual curses on him and his life would still be at risk.

The finding of the Board

11.  The Applicant requested to have his appeal decided as soon as possible without an oral hearing.  He made further repeated requests through his legal representative.  The Board acceded to his request and determined his appeal on paper.

12.  The Board found even on the basis of his evidence that the Applicant was never tortured either by his step mother or step brothers and there was no evidence that the condition of his leg was caused by a curse administered on him by his enemies.  As the Applicant has a wife and two children living in Nigeria, his share of his father’s estate would go to them should anything happen to him.  Hence, Board found the motive the Applicant claimed for the danger or risk he faces from his enemies on his return to Benin does not make sense. 

13.  On the above facts, the Board found that the three incidents described cannot be regarded as torture, punishment or ill-treatment under section 37U of the Immigration Ordinance; and further that his enemies who were allegedly responsible for the three incidents were not state officials nor did they act with the consent or acquiescence of a public authority or official.  Hence, the Board concluded that the Applicant failed to prove his claim for protection under the Torture Risk ground.

14.  On the same factual basis, the Board found that the alleged ill-treatment occasioned by the three incidents did not reach the minimum level of severity.  Hence, the Board concluded that the Applicant failed to prove a substantial risk of being subjected to such ill-treatment as to qualify for protection under BOR 3 Risk ground.  For the same reason, the Board found that he failed to prove there is a real risk or danger against his life under the BOR 2 Risk ground, should he be refouled to Benin.

15.  On the same factual basis, the Board found the Applicant failed to prove a well-founded fear that there is a reasonable possibility of persecution; and even if there was, the persecution would not be for one of the five “Convention” reasons, namely, race, religion, nationality, membership of a particular social group or political opinion.  Hence, his claim for Persecution Risk ground also failed.

16.  Lastly, the Board found on the basis of credible Country of Origin Information (“COI”) that state protection and internal relocation are available options to prevent or avoid the risk.

Grounds for judicial review

17.  The Applicant advanced the following four grounds of application in his Notice of application for leave to apply for judicial review:

(1)  The Decision was not reasonable and unfair.  The Adjudicator failed to give him sufficient time and chance to arrange relevant evidence.

(2)  The Director failed to give proper weight to the presence of state acquiescence.  He was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Director failed to take such (above) arguments into account.

(4)  This was a clean case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in his country is still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test.

Ground (1) – Unreasonable and unfair

18.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance and mentioning right to life and the extra-judicial killing which he would face if returned to Benin. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM.  The question is whether the Applicant meets those criteria.  The Board was of the opinion that the Applicant did not.  That is a finding of fact exclusively within the province of the Board. The Applicant disagrees with the finding and complains that the Decision was unfair and unreasonable.  Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair in the public law sense, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. 

19.  The essence of the Applicant’s ground is that the Decision is unreasonable and irrational.  But he did not give particulars as to why the Decision is unreasonable and irrational.  The Board set out the legal principles relating to the four applicable grounds under the USM, the burden of proof, the Applicant’s evidence and gave full reasons for its finding.  Basically, the reason is the Applicant failed to discharge the burden of proving his fears and risks, that his fears and risks meet the criteria under any of the four applicable grounds.  The Board’s findings could not be criticized as unfair or unreasonable.

20.  As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion.  If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so.  However, it was the Applicant who repeatedly pressed by himself and through his legal representative for an early determination without an oral hearing.  He must have considered his case ready for determination.  It lies very ill in his mouth to say he did not have sufficient time.  This ground has no conviction at all.  Obviously, this ground is cloned from some other applications for judicial review.  It is wholly contradictory to the facts of this case.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies 

21.  For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account.  The only torture or ill-treatment he ever received was the three incidents which caused him no harm.  There was no evidence that state law enforcement agencies were involved in those incidents. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI 

22.  The Applicant complains about the weighting given to the COI.  In his favour, the Court assumed that complaint included at least the failure to take into consideration the corruption and incompetency of the administration in his country in giving him protection for his safety.  After referring to COI from credible sources, including the Country Report on Human Rights Practices 2017 - Benin issued by the Department of State of the United States, the Board found, despite inadequacy in the administration, that state protection is available and internal relocation a possible option.  This is a finding of fact within the province of the Board.

23.  Furthermore, for good reasons the Board found that the Applicant had failed to prove his fear and risk of harm was genuine.  On this finding, there is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds.  His claims were dismissed on that basis.  In other words, the Applicant is not at risk at all.  He has no need for state protection or internal relocation.  It is only in respect of these two issues that corruption and incompetency of the administration may have relevance.  What the Board found about availability of state protection and internal relocation was unnecessary for the Decision.  Therefore, there is no substance in this ground. 

Ground (4) – Unfair attitude and breach of high standard of fairness

24.  Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant argues that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test. He did not give particulars of unfairness and breach of duty.  Taking a global view of the Applicant’s case, the findings of the Board and the above grounds, there is no substance in this ground as well.

Conclusion

25.  For the above reasons, none of the grounds advanced by the Applicant has substance.  In overall terms, the Applicant is in fact attempting to challenge the Board’s findings of facts under the guise of judicial review.  The role of the Court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

26.  On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria entitling him to non-refoulement protection on any of the four applicable grounds.   The Board gave reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)