Kokanzo-ngomene Juste-magloire Patrick v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 823/2017

[2018] HKCFI 1966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 823 of 2017

BETWEEN

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 being absent on 1 June 2018 and appearing in open court on 2 August 2018;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 30-year-old national of Central African Republic (“CAR”) who arrived in Hong Kong on 8 June 2014 with permission to remain as a visitor up to 22 June 2014, but he did not depart and instead overstayed until 14 July 2014 when he surrendered to the Immigration Department, and subsequently lodged a non-refoulement claim on the basis that if he returned to CAR he would be harmed or killed by the rebels of Seleka as his father had worked for the previous government.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Batambo, Bangui, the capital of CAR to a family of devout Christians and church members with his father being the secretary of the church they regularly attended.  His father had also worked in the office of the Prime Minister of CAR, and later became the Principal Controller of Finances and an advisor to the then Prime Minister during the term from 2008 to 2013.

3.In October 2012 the applicant left for China to further his studies at Hunan University during which he kept in contact with his family and friend BE who lived in the same area of his family in CAR.

4.On or about 18 December 2013 the applicant was informed by BE that his father had been assassinated by the Muslim rebel group Seleka during the civil war in CAR and that his mother had fled with all his siblings to neighboring Cameroon with whom he had lost contact.

5.When he ran out of money and was unable to continue with his studies at the university, the applicant became concerned that he might be in breach of the terms of his visa in China, and when he was unable to obtain any assistance from the CAR embassy in China, he left for Hong Kong on 8 June 2014 and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 June 2015 and later attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.Whilst in Hong Kong he was able to resume contact with his mother and was warned not to return to CAR for fear of being killed by the rebel group Seleka due to his father’s connections with the previous government, as she and his siblings have all taken shelter in Cameroon.     

7.By a Notice of Decision dated 20 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.In his decision the Director found for the fact the applicant was never in CAR when all his asserted incidents occurred and there was never any physical harm on him by the rebels of Seleka that there is no reliable evidence to support his perceived fear of harm from them due to his father’s connections with the previous government or that his father was killed by the transitional government, that reliable and objective Country of Origin Information (“COI”) show that the rebel group Seleka had subsequently been dissolved with its members dispersed into the country side, that the political situations in CAR have since improved with reasonable protection from the state or the international peace-keeping force stationed there available to the applicant if resorted to, that since Seleka has no involvement in the present CAR government there is no reason or indication that the applicant would be a target of that government, and that COI also show that reasonable internal relocation alternatives are available in CAR with a population of 5.2 million people spread across a vast territory of more than 622,000 square kilometers that it would not be unduly harsh for the applicant as a well-educated and able-bodied young man to move to other area away from his home district where it would be difficult if not impossible for his perceived enemy to locate him.

9.By a Notice of Further Decision dated 8 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 2 September 2015, and for which he attended an oral hearing on 19 May 2016 before the Board with legal representation during which further arguments and submissions were made to the adjudicator for the Board.  On 31 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found no evidence that the killings by the Seleka rebels during the civil war had targeted the applicant’s father on an individual basis or because he held a government post, that reliable and objective COI show that the Seleka rebels have since retreated to the north of CAR and that the country is heading towards reconciliation under its new government and with reasonable state protection available that the applicant’s perceived risk of harm still from the Seleka rebels is just pure speculation on his part, and that reasonable internal relocation alternatives are available in CAR to the applicant in regions such as Basse-Kotto, Ouaka and Haute-Kotto which are relatively safe with little incidents reported.

12.On 31 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the Board’s decision is procedurally unfair and fell below the high standards of fairness required thereby depriving the applicant’s right to a fair hearing;

(2)  that the adjudicator failed to engage in a rational and reasonable evaluation of the COI and proceeded in a contradictory manner;

(3)  that the adjudicator failed to provide any justification for preferring outdated COI to more up-to-date COI;

(4)  that the adjudicator failed to take into account of the COI provided by him in the consideration of the escalation of violence in his home country and by relying only on the improved situation occasioned by the presidential election that led to a decision which is irrational or Wednesbury unreasonable;

(5)  that it was unfair of the adjudicator not to allow the applicant at the hearing to address the updated situation in his home country and to explain why it would still not be safe for him to return to his home country; and

(6)  that the adjudicator failed to provide any consideration of his claim under BOR 2 risk given the internal armed conflicts and civil war in Central African Republic.  

13.Most of these grounds are just broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which of the COI were outdated or how were they evaluated in a contradictory manner. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.As for his complaint of not being allowed by the adjudicator to address the updated situation in CAR to show that it would still not be safe for him to return to his country, I note that he was legally represented with counsel at the hearing and that it was stated in paragraphs 55 – 57 of the Board’s decision that the applicant did make further submissions in respect of BOR 2 risk when he referred to the armed conflicts from various state and non-state actors in CAR which the adjudicator did consider, and that in paragraph 19 the adjudicator also commended the lawyers for both sides of their assistance with their overwhelming research into the relevant COI.

15.In fact at the oral hearing of his present application now before me when he was asked as to what was it that he was unable to address the Board as to the updated situation in his home country, he answered that he had much more updated COI and other documentary evidence that could prove that it would still not be safe for him to return home, but that they are all in the French language without any English translation and that somehow he had not brought them with him to the hearing nor had he ever submitted them to the Board or to the court, and when asked why that was so, he was unable to give any answer.

16.Given the amount of COI referred to and considered by the Director in such details from pages 15 to 35 as well as those attached to the applicant’s NCF as listed in paragraph 126 of the Director’s decision, which were then all included in the hearing bundle for the applicant’s appeal before the Board, and which together with those additional and more updated information presented before the Board of which the adjudicator described in the decision as copious and of being overwhelmed as noted above, and having considered them carefully myself, I do not in the circumstances find any merit in this complaint of the applicant over the availability of relevant COI before the Board in the consideration of his claim, nor any evidence of procedural unfairness regarding his right to address the Board during his appeal hearing.

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, in which the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their roles as primary decision makers, and in the absence of any legal error identified by an applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.  

18.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 7^th day of September 2018.

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