RADEBE SIBUSISO MOLLY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1846/2019

[2024] HKCFI 3081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1846 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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Radebe Sibusiso Molly (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 31 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 21 May 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a South African. He was born on 26 September 1981 in Johannesburg, South Africa. He received 8 years of education and had 20 years of work experience as a trader in apparels.

The Claim

3.  The Applicant relied on the following facts for his claim. The Applicant’s late father (“Father”) setup a joint trading business (“Business”) with a man (“PL”) before the Applicant was born. The Business traded in motor tires and household items. Father wanted to exit from the Business and asked PL for money, which angered PL.

4.  PL, being a member and one of the decision makers of the ruling African National Congress, was a powerful and influential figure in South Africa.

5.  Father was shot dead on or about 1 July 2016.

6.  The Applicant believed PL was responsible for Father’s death because Father had no other enemy. The Applicant made a police report but they told him that there was no evidence against PL and even warned the Applicant to leave South Africa for his safety.

7.  In the next few days after Father’s murder, the Applicant was followed by some unknown people whom he recognized as gangsters working for PL. They did not cause him any harm. The Applicant also received phone calls in which the callers asked for his whereabouts and asked him not to challenged PL and threatened him that Father’s death was a “good example” for the consequence.

8.  The Applicant, being the eldest son and the sole person eligible for inheriting Father’s estate, felt very afraid of PL and fled to Mainland China on 8 July 2016. The Applicant said that when he left South Africa, he was delayed by the authorities at the airport for 5 hours. He had to offer USD 500 to the officer before he could eventually depart.

9.  The Applicant learnt that on around 8 November 2016, his brother (“K”) was shot at the leg in their parent’s home in Johannesburg by one of the five gangsters. K reported the incident to the police but felt that he could not stay in South Africa, so he fled to the Benin Republic with their mother.

10.  The Applicant claimed that he would be harmed or killed by PL or his gang if he were returned to South Africa.

Procedural history

11.  The Applicant arrived in Hong Kong on 12 November 2016 as a visitor and was permitted to remain until 19 November 2016. He overstayed and surrendered to the Immigration Department on 21 November 2016. By written representations of 22 November 2016 and 19 June 2017, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

15.  On 11 July 2019, the Applicant filed another affidavit applying to cancel his case (“Withdrawal Application”).

The DOI Decision

16.  The Director noted that the low intensity and low frequency of past ill-treatment from PL was indicative of a small future risk of harm upon the Applicant’s return to South Africa. The Director further noted that PL was not as powerful and influential in South Africa as the Applicant claimed.

17.  No information showed that the Applicant had been unfairly or mistreated by any authorities of South Africa. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary. The Director was of the view that the Applicant’s experience of being extorted money by the officer at airport appeared to be an isolated incident committed by an individual officer.

18.  The Director further found that internal relocation would be viable. If the Applicant moved to Cape Town or Durban, PL would have great difficulty in locating him. After considering the Applicant’s age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

21.  In §§22-116 of the Board’s Decision, the Board made detailed analysis of the Applicant’s evidence given at different stages of the non-refoulement proceedings and found his evidence about the alleged past incident to be “vague, inconsistent, unpersuasive and not forthcoming” which stood in stark contrast to his “detailed and coherent” evidence about his biographical information (§42 of the Board’s Decision”) and his evidence regarding the shooting incident against K to be “vague, inconsistent and unpersuasive” (§108 of the Board’s Decision). His oral evidence was found to be “evasive, indirect, lack specificity and unpersuasive” (§86 of the Board’s Decision). The Applicant further provided no independent evidence to substantiate his claim. The Board therefore rejected the Applicant’s evidence in its entirety.

22.  The Board further held that in any event, the Applicant could safely relocate to other parts of South Africa, such as Cape Town or Pretoria, to avoid the alleged danger from PL. It found that internal relocation would be viable and it would not be unduly harsh to expect him to relocate (§§117-120 of the Board’s Decision).

23.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

24.  In a judicial review, the court does not step into the shoes of the decision makers.

25.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

26.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “the fact is that [PL] and his gangsters have killed my father and have make attempt to kill me by shooting my brother [K], I fear my life.” He then produced the Board’s Decision as exhibit to the Supporting Affidavit but no other supporting documents.

28.  By the Withdrawal Application, the Applicant applied to cancel his case. The court had on 12 July 2019 informed the Applicant that his case would be listed for hearing.

29.  On 26 July 2024, the Director informed the court that the Applicant had been removed on 19 July 2019.

30.  On 2 August 2024, the court wrote to the Applicant at his address on records in the court file asking the Applicant to state his preferred language for hearing and to submit his submissions to the court.

31.  As at 14 October 2024, no response has been received from the Applicant. As the Applicant has been removed from Hong Kong in July 2019 without informing the court of any change of his address for service and letter sent to his address on records in the court file was not responded to, I decide to deal with the Applicant’s applications for leave for judicial review and for withdrawal of the leave application on papers.

32.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

33.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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; correctly identified the issues and observed high standards of fairness.

34.  The Board found that the Applicant was not a credible witness. The Board found that the Applicant manufactured the entire claim in an attempt to prolong his stay in Hong Kong and that there was no real risk of the Applicant facing any harm from PL or his gangsters or anyone if he were to return to South Africa. In addition, the Board considered that the Applicant could safely and reasonably relocate to other areas in South Africa if he wished to do so upon his return.

35.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

36.  The Applicant subsequently filed the Withdrawal Application on 11 July 2019 stating that he wanted to cancel his case.

37.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

38.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

39.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

40.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

41.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant had made no response to the letter sent by the court to him on 2 August 2024, the court will send a copy of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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