Houenou Michee Herve v. Torture Claims Appeal Board

HCAL 1549/2018

[2020] HKCFI 3164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1549 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of the Republic of Benin in West Africa who arrived in Hong Kong on 17 January 2012 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Benin he would be harmed or killed by some members of a group which practiced voodoo/black magic for refusing to join their group.

2.The Applicant was born and raised in Ekpe, Republic of Benin where his parents lived apart in 1998 with the Applicant and siblings living with their mother after he moved to another village when he was in his teen. After leaving school he worked as a forwarding agent in his home district.

3.In 2006 his father passed away in a village in Wode where he used to head a group known as Les Hounssa Houto (“LHH”) which practiced voodoo and black magic to extort money, and when the Applicant attended his father funeral, he was met by some members of LHH and was asked to join the group to succeed his father’s place, and when the Applicant refused, those men threatened to use black magic against him and his family unless he yielded to their demand.

4.After the funeral the Applicant returned to his home village without any concern about the threats from those men, but when he was later informed by his mother that his 2 sisters had suddenly become sick and had subsequently died of mysterious causes, and when he himself also started to have daily nightmares, of which he was later advised by a lady astrologist/fortune teller in the village that what happened to him and his sisters must have been caused by black magic, and that if he wanted to survive he must either join the group or leave Africa, and so the Applicant in June 2008 left Benin for South Africa where he stayed for more than 3 years without incidents, but as his nightmares persisted, he therefore in January 2012 departed for Hong Kong, and when he was refused entry, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 7 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 29 May 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those members of LHH upon his return to Benin as low due to the absence of reliable evidence of any past ill-treatment from the LHH people, that it is doubtful after all these years that the LHH people would still have any adverse interest in him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Benin with a large population of 10 million people spread across a vast territory of more than 112,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Benin away from his home district in large cities where it would be difficult if not impossible for those LHH people to locate him.

7.On 8 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which he failed to attend the oral hearing of his appeal scheduled on 21 February 2018, and in the absence of any explanation acceptable to the Board for his non-attendance, the Board proceeded to deal with his appeal in his absence and on paper. On 7 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board disputed the Applicant’s credibility as to his claim, and while accepting from reliable COI that voodoo/black magic was a widespread belief and practice in Benin, it found no reliable or scientific evidence that it would have any real effect on the Applicant or his sisters, that the claim that those LHH people could possess any supernatural power to harm the Applicant or his family is far-fetched and unworthy of belief, and concluded that the Applicant’s alleged fear of harm from LHH upon his return to Benin is not credible that his claim for non-refoulement protection failed on all applicable grounds.      

9.On 6 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he stated that the Board failed to take into account of the actual situation of voodoo effects in Benin when considered that police protection would be available to the Applicant to reject his non-refoulement claim which was unfair or unreasonable.

10.It is however plain in the decision that the Board did accept that voodoo/black magic were widely practiced as a belief or religion in Benin but found, correctly in my view, no evidence, scientific or common sense, that such practice could have in reality caused any real harm on the Applicant or that those LHH people could have used them to harm him or his family which was the primary basis of his claim, and while the Adjudicator may seem to have been too harsh in refusing to accept the Applicant’s explanation for his non-attendance at the oral hearing or to refuse to schedule another hearing and yet proceeded to take issue with his credibility without receiving his oral evidence, but given the nature of his claim and the Adjudicator’s correct finding of the practice of voodoo/black magic in Benin based on relevant COI, I fail to see how the Applicant could have advanced his case any further before the Board had an oral hearing been re-scheduled for his appeal.        

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Benin, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

13.In the premises and having considered 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.

14.Furthermore, the Applicant on 9 October 2020 filed an affidavit to state that he has “reliable information that it is safe” for him to return to his home country, and on 7 December 2020 he confirmed that it is for that reason that he now wishes to withdraw his leave application for judicial review so that he can make arrangements to leave.  

15.As such and for the reasons given above, and upon being satisfied that there is no prospect of success in the Applicant’s intended application for judicial review, I therefore dismiss his leave application.

Dated the 29^th day of December 2020.

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