GBAGUIDI SIMPLICE MAHOUGNON v. TORTURE CLAIMS APPEAL BOARD

HCAL 3892/2019

[2025] HKCFI 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3892 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 13 November 2019 (“the Board's Decision”), which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003892_2019_files/the_Board's_Decision.pdf

2.  The Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 13 June 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant did not state the correct names of the putative respondent and the putative interested party in Form 86. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

4.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male Beninese born in Cotonou, Benin on 20 March 1978.  He had nine years of education.  He played music after he finished school in around 1993.  The income from his father’s land and house was sufficient to support the family, and there was no pressure on him to engage in a steady form of employment when he was in Benin.  He inherited his father’s land and house after his father’s death in around 2012.

(2)   The applicant claimed that he left Benin for Guangzhou, China sometime in 2015 for fear of harm and death by his uncle Ben who demanded him to transfer the land and the house to him.

(3)   The applicant’s China visa only allowed him to stay for one month.  He therefore travelled to Macau and Hong Kong on separate occasions and went back to China each time to extend his stay in China.  Later on, he studied at a university in Jilin, China for 6 months but was unable to continue for lack of fund.  He returned to Guangzhou in December 2015.  He then repeated his travel to Macau or Hong Kong to extend his stay in China as before.

(4)   After he came to Hong Kong on 13 January 2017, he claimed that he lost his passport and it was not safe for him to return to Benin to re-apply for a passport.  He overstayed in Hong Kong from 28 January 2017 until he surrendered to the Immigration Department on 8 February 2017.  He then lodged a claim for non-refoulement protection on 4 May 2017.

Grounds for judicial review

5.  The applicant advanced 3 grounds for his intended judicial review in his supporting affirmation filed together with Form 86 on 30 December 2019.  His grounds are as follows:-

(1)   According to the Country Reports on Human Rights Practices for 2017 - Benin, published by the US Department of State (“the USSD 2017 Report”), impunity was a problem.  Police leadership often did not punish and sometimes protected officers who committed abuses.  Police corruption was widespread. The police extorted money from people in and out of his country.  The police was guilding [sic] his uncle anywhere he was going.  Therefore, going to the police to report his uncle who swore to kill him was not a perfect solution for him.

(2)   The uncle and his thugs killed his mother.  They injured the applicant with beating and the applicant does not want to experience such ugly situation again in his life.

(3)   Relocating to other parts of his country was not possible for him because his country is centralized in one geographical developed area, ie the central Cotonou, on which the business and cost of livelihood depend.

6.  The applicant also mentioned in his affirmation that his life would be in great danger if he were to be sent back to his country of origin.

Discussion

7.  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.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

8.  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 a reasonably arguable claim which enjoyed realistic prospects of success.

9.  Thus, it is for the applicant to demonstrate to this court that his grounds for judicial review have realistic prospects of success.

10.  However, the first ground as asserted by the applicant has no merits.  The Board had fully considered and even corroborated the USSD 2017 Report.  The Board noted the corruption problem in Benin as stated in the USSD 2017 Report.  Yet, the same report also showed that the Beninese government has taken practical steps to improve the performance of the police, and police reforms have been and are on-going with positive results.  The Board also noted that Article 15 of the Constitution of Republic of Benin provides for rights to life, liberty and security to Beninese nationals.  The Board was not unreasonable or irrational to conclude that state protection is available upon the applicant’s return to Benin.

11.  In the second ground, the applicant asserted that the uncle and his thugs killed his mother and they injured him with beating.  He further stated that he did not want to experience this ugly situation again.  However, the applicant did not advance this assertion that the uncle and his thugs killed his mother to the Director or the Board.  He only mentioned that shortly before his mother died, he met a woman named Blessing and they were devoted to each other.  It is just inconceivable that the applicant would omit such a tragic event to the Director or the Board. There was also an oral hearing before the Board on 10 October 2019, and the Board explained the purpose of the hearing to the applicant that it was for him to supplement whatever facts or evidence he felt he had omitted to disclose in respect of his claim, but he told the Board that he had nothing else.  The assertion that the uncle and his thugs killed his mother simply lacks credibility.

12.  As to the applicant’s assertion that he was injured with beating by the uncle and his thugs, the Board found that he had only once been attacked by 7 to 8 unknown people.  He had not been inflicted with any serious injuries.  He only sustained “internal injuries” to his right shoulder and treated his injuries by taking painkillers.  This finding of facts is solely within the ambit of the Board.  With this finding, there is nothing wrong for the Board to conclude that the injury was not serious and it is unlikely that the applicant would face a genuine and real risk of being subject to ill-treatment upon his return to Benin.

13.  Thus, the second ground is not reasonably arguable and has no reasonable prospect of success.  The allegation that his life would be in great danger if he were to be sent back to his country of origin is groundless.

14.  As to the third ground, the Board did assess the viability of internal relocation and found information from the World Factbook of US Central Intelligence Agency that Benin has an estimated population of 11 million people as at July 2017, and is a country that spreads across 110,622 square kilometres.  Contrary to the applicant’s assertion, Djougou is one of the largest cities of Benin and one of the important market towns in Africa.  Thus, it is not true that Cotonou is the only geographical developed area on which the business and cost of livelihood depend.  The third ground is totally devoid of merits.

15.  In sum, the applicant has failed to demonstrate to this court that there is any reasonable prospect of success for any of his grounds for judicial review.

16.  For the sake of completeness, this court has also examined and scrutinized the Board’s Decision for any error of law, procedural unfairness and irregularities.

17.  In assessing the appeal by the applicant, the Board held a hearing on 10 October 2019.  The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.  However, after being explained the purpose of the oral hearing, the applicant said he had nothing else.  The Board did ask questions to clarify and understand the applicant’s case further, and concluded that there was no evidence to support that the uncle intended to cause serious injuries to him and the uncle only wanted the applicant’s house and land.  The Board also found that the applicant had no intention to apply for non-refoulement protection.  He only applied for that after he lost his passport in 2017 while he was in Hong Kong.

18.  The Board also re-assessed the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”), namely:-

(a)  risk of torture under Part VIIC of the Immigration Ordinance;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol.

19.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment was unlikely to materialise, and there was no real risk of right to life, risk of torture and risk of persecution.  Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

20.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

21.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

22.  For reasons aforesaid, the Leave Application is dismissed.

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

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