UAMUSSE ELIAS FILIPE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1256/2023

[2024] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1256 of 2023

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 be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 21 July 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 5 July 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 March 2023 (the “Notice”). 

2.  The Applicant claims to have dual Mozambican and Liberian nationality.  He entered Hong Kong on 3 September 2013 as a visitor and was permitted to remain until 17 September 2013.  He overstayed and surrendered to the authorities on 10 October 2013.  He made a non-refoulement claim in 2013 (the “previous claim”) which was unsuccessful before the Director and the Board.  He applied for leave to apply for judicial review against the Board’s decision but withdrew it on 3 December 2021 before it was heard.

3.  Then, a year later, on 2 December 2022, he raised a second non-refoulement claim, ie the present claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s Subsequent Claim is mainly based on his non-refoulement claim form (“NCF”) prepared by him with legal advice and the record of his screening interview in the presence of his lawyer in relation to his claim.  In gist, he claims that if returned to Liberia, he will be killed by rebel forces working in the Liberian government whom he believes still have records of his deceased parents’ employment with the previous government and the present government will not protect him.

5.  The Applicant, now aged 48, claims to be born in Maryland County, Liberia.  His father was a marine officer under Samuel Doe’s administration, which came into power in 1980.  His mother was a nurse in a local hospital.  In 1989, the rebel group National Patriotic Front of Liberia (“NPEL”) led by Charles Taylor allied with the rebel group under Prince Yormie Johnson overturned the Doe administration.  When Charles Taylor’s NPEL forces entered Maryland County, they targeted and persecuted people who had previously worked with the Doe administration.  The rebel forces broke into his parents’ house, took his parents and brother to the beach and executed them, while his elder sister was raped and then killed.  The Applicant, who was then 14 years of age, was locked in a room.  He was rescued by his neighbours and taken to an orphanage in Monrovia.  He was later adopted by a Muslim family from Mozambique in 1990 and moved to Mozambique in 1991.  Since then, he had never returned to Liberia.  He worked as a farmer in Maputo between 1991 and 2013. That was his Liberia past which is the basis of his present claim.  In support of his present fear, he claims he knew of a Liberian girl in Hong Kong who was killed a few months after returning to Liberia in 2018.

6.  In his previous claim, he claimed to be born to a Muslim family in Maputo, Mozambique and is of Shangaan ethnic group.  He worked as a farmer between 1982 and 2013.  Out of curiosity, he attended a Christian church several times while he was staying in his sister’s home in Mampula in early 2012.  His uncles came to know about his visits to the church and insisted that as his father was a Muslim, he should also be a Muslim.  The Applicant asked for time to consider.  In September 2012, six of his uncles came to his sister’s home and took him to a meeting place.  When he refused to be a Muslim, they assaulted him for several minutes.  They warned him that this was his last chance and if he did not become a Muslim by the next time they met him, he would have to bear serious consequences.  The Applicant discussed with his sister who suggested him to leave Mozambique.  He moved to Maputo where he stayed for five months.  There, he was assaulted by two of his uncles and two other unknown men.  After further discussion with his sister, he flew to China on 30 April 2013 and then to Hong Kong to seek protection.

Finding of the Board

7.  The Applicant gave two different locations for his birthplace.  He put down “Maputo, Mozambique” in his previous claim and “Maryland County, Liberia” in his present claim.  He explained that as his adoptive parents had saved him so he said he was born in Mozambique where his adoptive parents came from instead of Liberia.  The Board could not accept that explanation as he was specifically asked about his place of birth and not where he was from and his explanation could not explain why he put down specifically “Maputo” in addition to “Mozambique”.  But, more fatal is that  he had no real explanation as to why in his previous claim he claimed to have been a farmer in Maputo Mozambique between 1982 and 2013 but in his present claim he said he moved to Mozambique only after around 1991, a significant difference of nine years.  The Board found the inconsistencies were so serious as to indicate that he was not telling the truth, the information he provided is not credible and cannot be relied upon to support his claim.  Hence, it rejected his claim and dismissed his appeal.

8.  However, the Board went on to assess his claim on the basis of the case as he asserted.  Accepting the NPFL forces executed his parents for having worked for the Doe administration, killed his brother who had joined the Doe army, raped and killed his sister, it remains his evidence that the NPFL forces only tied him and locked him up in a room without killing him as were many of the people and children in the village.  There was nothing to show that his parents, brother and sister were killed because of his parents’ and brother’s employment with the Doe administration.  The Board found that they were killed like many of his neighbours were in an act of war.  If the NPFL forces had targeted his parents and brothers, they would have targeted him and killed him as well, but they did not.  The Applicant had failed to pinpoint to any reason why NPFL forces want to target him.  The Board found the NPFL forces had no intention to kill him, a boy of 14 and were not targeting him.  This inference is further reinforced by the fact that the Applicant remained unharmed for two more years in Liberia while still in turmoil before he was adopted and moved to Mozambique. 

9.  Furthermore, on the basis of authoritative and credible country of origin information (“COI”), the civil war in Liberia ended in 2003 and a peace accord was signed on 18 August 2003 as a result of international intervention.  The peace was facilitated by Charles Taylor resigning his presidency and departing Liberia for Nigeria where he was granted political asylum and with the deployment of military intervention force from the Economic Community of West African States.  Twenty years after that, the political conditions in Liberia stabilised.  According to the webpage, “The World Bank in Liberia” updated on 30 September 2022, the political situation remains stable as Liberia prepares for next year’s presidential and legislative election.  The Applicant’s claim that more than 30 years after the civil war there are still NPFL forces working in the current Liberian government and police force targeting him because of his father and brother is unsupported by evidence and is a mere speculation.  The Board also considered his story about a girl getting killed after returning to Liberia was not relevant to his claim in any way and could not support his claim.

10.  Even on the basis of the case as he asserted, the Board found there was no substantial ground to believe that he would face a real and foreseeable risk of harm from such NPFL forces upon his return to Liberia.  Given his age and background, the Board also considered there is no reason to believe he would not be able to support his own living in Liberia.  On the basis of these findings of fact, the Board concluded that the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM.

The legal principles applicable to judicial review

11.  The function 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].

Grounds for judicial review

12.  The Applicant did not put forward any grounds of application for judicial review in his Form 86.  In his supporting affirmation, he said he was not satisfied with the Decision of the Board.  In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the factual basis in support of his claim to non-refoulement protection.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  

13.  At the hearing, he produced a well written submission advancing the following three specific grounds of review:

(1)  that the Board failed to consider material/relevant facts and/or drew irrational conclusions unsupported by evidence;

(2)  that the Board failed to consider relevant COI when assessing his risk of harm; and

(3)  that the Board erred in assessing the availability of internal flight alternatives (which the Court understands him to mean internal relocation).

Ground (1) - failure to consider relevant facts and drawing irrational conclusions

14.  This ground is in fact a direct challenge of the Board’s finding of fact arising as a result of error of law and irrationality.  The Applicant claims he has dual Mozambique and Liberia nationality.  The Board noted that in his previous claim, he claimed he was born in Mozambique, but in the present claim he said he was born in Maryland County, Liberia.  Of course, he could not have been born in two places.  He lied in either one of his claims.  He explained before the Board that as his adoptive parents saved him he put down Mozambique where his adoptive parents came from as his birthplace instead of Liberia.  After spending almost three pages analysing this single issue, the Board concluded on the basis of the objective evidence before the Board that this explanation was incredible. Then, it held at paragraph 60 of the Decision:

“ 60. The information [the Applicant] provided in the previous claim and subsequent claim seriously inconsistent as shown above. The inconsistency indicates that the information is not credible, and cannot be relied on to support his claim. His claim is based upon such unreliable information. I do not accept such evidence. Hence his appeal on the subsequent claim is dismissed.

61. Even if the information he provided to support his subsequent is accepted, I would still dismiss his appeal on the subsequent claim, for the reasons hereafter mentioned.”  

15.  This Court fully agrees with the Board’s finding on the inconsistency and its assessment of the Applicant’s credibility solely on this issue about his birthplace.  This Court understands that if the Applicant was born in Mozambique, it would take much more evidence to persuade the Board that his parents and brother had became government employees or a soldier of the Doe administration in Liberia, which is the underlying basis of the Applicant’s fear of harm.  But this Court fails to see how, putting the Applicant’s credibility at the worst, such a lie could lead to a wholesale rejection of his claim of risk of harm in the risk state without testing or even considering those aspects of his case.  This Court agrees with the Applicant’s complaint that the Board’s conclusion that the Applicant’s claim is not substantiated solely by reason of his lie about his birthplace is an error of law in that the Board took irrelevant matters into account or failed to take relevant matters into account, is procedurally unfair, and that the conclusion is irrational.  Having made the above finding, there is no need to consider the Applicant’s argument about the credibility of his explanation of the inconsistency in his evidence.

16.  The saving grace of the Board’s Decision is that it then proceeded to assess the Applicant’s claim on the basis of the case as he asserted without even testing the credibility of his case. That undid all the damage or unfairness done to the Applicant.  Thus, the successful challenge of the Board’s Decision on this ground has no impact on the Decision.

Ground (2) – failure to consider relevant COI

17.  The Applicant complains under this ground that in assessing his risk of harm the Board failed to consider relevant COI.  He referred to paragraph 62[6] of the Decision in which the Board held “there is simply no evidence to support this assertion “that Charles Taylor led his NPFL men around the 1989 to target and persecute people who previously worked with the Doe Government.””  He submitted that the Board failed to exercise its duty of joint endeavour to research into The Advocates for Human Rights entitled “A house with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project (1 January 2009) and Human Rights Watch World Report 1990 – Liberia, 1 January 1991, which reported extensive human rights violations in Liberia.  There is no need to quote these COI.  What is described in these COI is history, 23 to 33 years prior to the Decision of the Board.  They had been overtaken by events which occurred during these 20 to 30 more years as reported by the COI considered by the Board.  The situation in Liberia has much improved.  The Board’s finding is well supported by current COI.  The Applicant has not advanced any COI about the conditions in Liberia as at the time of the Board's Decision which contradicts the COI relied on by the Board about the peace accord reached in 2003 and the stability in Liberia which developed during the twenty years thereafter.  This ground is an attempt to mislead the Court.  There is no substance in this ground.

Ground (3) – the Board erred in assessing the availability of internal relocation

18.  The Applicant complains that the Board “cursorily held that because [he has] received five years’ informal education, and have many years of working experience in farming” it would not be unduly harsh for [him] to sustain [his] living if [he] returned to Liberia”.  He submits the Board failed to reckon with the well-documented fact that Liberia ranks as one of the poorest countries in the world, actually one of the ten poorest countries on earth.

19.  There is no need to quote the COI relied on by the Applicant.  To qualify for protection, the Applicant has to show that he is entitled to protection under one of the four applicable grounds under the USM in the first place.  Even being a person in the poorest countries in the world is not a ground for protection under the USM. 

20.  Furthermore, the Board did not actually reject his claim for protection on the basis that he is at risk of harm which may be avoided by internal relocation.  The Board did not find he was at risk of harm at all.  In discussing about whether it would not be unduly harsh for him to sustain his living if returned to Liberia, the Board was comparing his life in Hong Kong against his would be life if returned to Liberia.  It is an irrelevant comment not necessary for the Decision.  There is no substance in this ground.

Overall scrutiny of the Decision

21.  Having dismissed the three specific grounds raised by the Applicant, what remains is the Applicant’s overall complaint that he disagrees with the finding of the Board that it is safe for him to return to Liberia.  In effect, that is a challenge against the Board’s finding of fact that he had failed to establish the factual basis in support of his claim for non-refoulement protection.

22.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  Save for the blemish discussed under the Applicant’s Ground (1) which has no consequence on the Decision, the Board correctly identified the factual and legal issues raised in the claim.  The Applicant’s claim is founded on his fear of harm by NPFL forces supporting Charles Taylor’s administration about 20 years ago.  The Decision of the Board was based on its assessment of his risk of harm under the present day conditions in Liberia.  It found on the basis of authoritative and credible COI that it is safe for the Applicant to return to Liberia.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Board’s Decision is a finding of fact which is 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.  The Decision is utterly without fault.  There were no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court is satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

23.  For the above reasons, the Applicant’s application for 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

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