Rasolonirina Marie Yvon Aljymi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 815/2021

[2021] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 815 of 2021

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 10 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant is now being detained by the Immigration Department.  He did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of Madagascar.  He came to Hong Kong on 28 September 2019 and was arrested for the offence of importing specimens of Appendix I species and cruelty to animals.  He was charged, convicted and sentenced to two years’ imprisonment.  He lodged non-refoulement claim with the Immigration Department when he was serving the term in prison.

5.He claimed that if refouled, he would be harmed or killed by his employer, Ali, because he had lost his substantial amount of money and Ali would also be charged with criminal offence in Madagascar.  Ali had asked him to carry some tortoises into Hong Kong, which he had no idea that they were protected species.  He was arrested by the Hong Kong police.  He had told the police that the tortoises were Ali’s property.  Those tortoises were confiscated too.  Ali learned about that and he was furious.  He had threatened that he would kill him if he returned to Madagascar.  He also feared that he would be charged for the same offence again if he returned to Madagascar.  Details of the story are set out in paragraphs 12-23 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.  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”).

7.By Notice of Decision dated 13 November 2020 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of harm if he returned to Madagascar was assessed to be low [27]; that he would not be punished again in Madagascar because Article 13 of its Constitution provides that no one may be punished twice for the same act [30]; that state protection was available to him [31] and that internal relocation was an option open to him [35].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He appeared before the Board on 23 March 2021.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board had cross-examined his evidence and found to be not true that his evidence that Ali was a powerful man in Madagascar, who could find him wherever he lived [45] and that Ali threatened to kill him if he returned to Madagascar [46].  The Board further found that Madagascar does have the law to prosecute again for trafficking wildlife should he return to Madagascar.  However, the legislation was not enforced.  The adjudicator had also relied upon the Marine Policy, which, coupled with the Madagascan Constitution, was of the opinion that the applicant would not face prosecution should he return to Madagascar [47].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 2 June 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, he said that the adjudicator failed to understand the seriousness of his claims. His evidence is true.  He cannot go back for reasons of prosecution and that he might be killed.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

15.His grounds in support of this application do not assist his application.

16.The Board is entitled to come to its conclusion as to the risk of him being killed by his employer, based upon the evidence before him.  As to the issue of double jeopardy of prosecution in his home country, which should be considered under BOR 3 risk, the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 had considered the same issue and held:

“182.     I do not think that the “severe mental and psychological blow” and the severe “frustration” that he might experience at the prospect of facing “yet another trial and imprisonment in relation to precisely the same conduct” … comes anywhere near to meeting the threshold requirements …”

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 26^th day of August 2021

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