EUGENE WILLIAMS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 311/2020

[2024] HKCFI 2814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 311 OF 2020

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 27 June 2017.  His application was filed on 5 March 2020, which is late for more than 2 years and 9 months.  This issue will be dealt with below.

2.  The applicant asked for a hearing.  He appeared before the Court on 2 October 2024.

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, aged 46, is a Liberian.  He last entered Hong Kong as a visitor using a Mozambican passport bearing another identity on 18 January 2010.  He overstayed since 2 February 2010 and was arrested by the police on 19 April 2010.  The applicant made a torture claim on 1 May 2010.  The claim was made on the basis that, if refouled, he would be harmed or even killed by General Tamba because he believed that the applicant was in possession of some diamonds from his father.

5.  Upon the commencement of the unified screening mechanism, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.  On 3 August 2015, the applicant was sentenced to imprisonment of 12 months for trafficking in a dangerous drug.

6.  According to the applicant, his father was the Lands and Mines Minister in Liberia.  One of his duties was to administrate the diamond and gold mines in the country.  On 18 September 1998, he was killed by some special security forces outside the US Embassy.  Thereafter, people from National Patriotic Force of Liberia (“NPFL”) went after the applicant and his sister, claiming that they had received some diamonds from their father.  A year later, the applicant left for Ghana with his sister.  During his stay in the refugee camp in Ghana, his friend told him that General Tamba was the mastermind for the killing of his father and he was looking for the applicant and his sister.  Out of fear, they went to South Africa and then to Mozambique in 2006.  Later on, the applicant learnt that General Tamba had come to Mozambique in search of him.  To avoid General Tamba, the applicant fled to Mainland China in November 2009 and eventually entered Hong Kong on 18 January 2010.

7.  The applicant further claimed through his duty lawyer that he was at risk of ill-treatment in Liberia as he was from the Krahn ethnic. The applicant was of the view that he could not seek protection from the police because General Tamba was in power and had the support from the authorities.  He even claimed that the police were seeking for his and his sister’s whereabouts as informed by his uncle.  The applicant considered internal relocation not viable as well because he believed that he would be killed secretly upon return to Liberia.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 April 2016 (“the Director’s 1^st Decision”).

The Director’s Decision

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

(a)  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”);

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

(c)  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”); and

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

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) a significant part of the applicant’s claimed fear of harm from General Tamba was based on hearsay and speculation [18]; (ii) the country of origin information (“COI”) showed that the repression against Krahn had diminished [20]; (iii) state protection would be available [21]-[23]; (iv) internal relocation would be viable [24]-[30] and (v) the applicant’s case failed to meet any of the requirement under BOR 3 risk [31]-[34], Persecution risk [35]-[39] or Torture risk [40]- [42].

11.  In the Notice of Further Decision dated 8 March 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

12.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board.  On 16 March 2017, the Board conducted an oral hearing.

13.  The Board noted from the COI that the Minister for Lands and Minds were some other persons, rather than the applicant’s father [22].  Although COI indicated a shooting incident outside the US embassy in September 1998, there was no evidence that his father or any minister was killed [23]-[24].  Furthermore, the applicant’s claim as to how he found out that General Tamba was after him in Mozambique was implausible [26].  Due to the various loopholes in the applicant’s evidence, the Board rejected his claim that his father was a minister and was shot dead outside the US Embassy in 1998.  It was also not accepted that the applicant was of interest to General Tamba due to a mistaken belief that he was in possession of some diamonds given by his father [29].

14.  Meanwhile, the Board noted from the COI that the ethnic violence against Krahn had abated in recent years [34], so that there was only a speculative risk rather than a real risk that the applicant would suffer harm upon his return to Liberia [38].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [10]-[20], [37]-[42].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

16.  The applicant has filed Form 86 dated 5 March 2020 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant said he did not agree with the Board.  But he has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

18.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said the Board should not reject his evidence.

20.  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.”

21.  For the reasons the Board has given above, the Board found that the applicant evidence was not reliable.  The applicant has not raised any valid ground to challenge the Board’s findings.  There is no reason for this Court to interfere with the Board’s Decision.

22.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

23.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.