MBONYANA SIYANDA VICTOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1203/2019

[2023] HKCFI 2622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1203 of 2019

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of South Africa.  He entered Hong Kong as a visitor on 28 July 2017 and was permitted to stay until 4 August 2017.  He did not depart and had overstayed since 5 August 2017.  On 15 September 2017, he was arrested by the Hong Kong police.  On 17 September 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle, Amos Mbonyana, because of a land dispute.

5.  In brevity, the applicant inherited the subject land from his late father.  However, Amos also intended to claim the ownership of the land.  Since he refused to give the subject land to Amos, Amos started to threaten him.  In around March or April 2012, four unknown men waited outside the applicant’s house, threatening to send him to join his late father in the grave.  He also noticed that, in around 2012 or 2013, Amos dropped some mystical power/charms outside his house, which he believed would make people sick, crazy or die.  Out of fear, the applicant fled out of South Africa.  He returned in August 2016 when he was again threatened by some unknown men.  As a result, he decided to seek protection in Hong Kong.  Details of his claim are set out at paragraphs 9 to 23 of the Notice of Decision dated 23 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the claimed past events did not indicate a real or substantial risk of harm from Amos [28]-[29]; (ii) even if there was a risk of harm, the said risk was localized [30]; (iii) state protection would be available to him [31]-[36]; and (iv) internal relocation was a viable option [37].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 8 January 2019, the Board conducted an oral hearing for his appeal, during which he provided more information to supplement his claim [6].

9.  The Board scrutinized the applicant’s claim.  The Board first noticed that it was only a bare assertion that the applicant’s late father owned the subject land [25].  It was in fact registered or at least acknowledged to be Amos’s [27].  Unless the applicant showed a better title over the subject land, it was likely that he was causing a nuisance by pursuing his claim over the land [35]-[37].  The Board further rejected the applicant’s claimed better evidence of the title [38]-[41] and the claimed political feud as it was only a red herring [42].  His immigration records showed that a non-refoulement claim was a last resort when all his freedom of movement had exhausted [43]-[46]. Meanwhile, at the time when he went back in 2016, he was not harmed by Amos or the unknown people [52].   

10.  As a result, the Board found that the applicant’s claimed fear of harm was unfounded and rejected his claim.  His appeal was therefore dismissed.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant said his uncle is after him and he wants to kill him in order to take over his father’s land and the Board did not look into his case.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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