Bidjoua Eustache Hauvelith v. Torture Claims Appeal Board

HCAL 1953/2018

[2021] HKCFI 3405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1953 of 2018

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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 in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 18 August 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of the Republic of Congo who last arrived Hong Kong on 7 January 2009 with permission to stay as a visitor and later as an employed soccer player extended up to 7 July 2009 when he did not depart and instead overstayed  until 22 February 2016 when he surrendered to the Immigration Department and on 14 June 2016 raised a non-refoulement claim on the basis that if he returned to Congo he would be harmed or killed by police or the Congolese government for having participated in an anti-government demonstration back in 2008 prior to his departure from the country.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Brazzaville, Republic of Congo.  After leaving school he worked as a professional soccer player in the local football league in the Moungali Commune.

3.Although the Applicant had no political affiliation, he on 15 August 2008 which was the National Independence Day of the Republic of Congo participated in a mass anti-government demonstration in the Makelekele District organized by the opposition party, during which the police arrived to disperse the crowd and arrested many demonstrators including the Applicant, and for which he together with many others were detained at various police stations during which the Applicant and others were beaten and tortured for days, and after two weeks the Applicant was released after his parents had paid bribes to the police who also advised that the Applicant should leave the country to save his own life, and so on 13 September 2008 the Applicant departed Congo for China, and from there he later travelled to Hong Kong in September 2008 where he subsequently overstayed after repeatedly extending his stay up to 7 July 2009, and eventually some 7 years later in February 2016 when he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 28 April 2017 the Director of Immigration (“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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk that his feared ill-treatments from the police upon his return to Congo as low due to the absence of any evidence that he had been wanted by or of any interest to the police or the Congolese government or authorities given that he was just an ordinary citizen and a soccer player without any political affiliation in his home country, 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 the Republic of Congo with a large population of 4.8 million people spread across a vast territory of more than 342,000 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 Congo away from his home district where it would be difficult if not impossible for him to be located.

6.On 9 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 August 2017 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as with submissions made on his behalf by his lawyer.  On 18 August 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found multiple material inconsistencies and implausibilities in the Applicant’s evidence with non-persuasive explanations that it doubted the credibility of his claims of past harm in the absence of any supporting documentary evidence or relevant COI, which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong in September 2008 until more than 7 years later in February 2016 that it rejected his claim of having participated in any anti-government protest or demonstration in his home country as alleged, or that he had been arrested, detained or tortured by the police or was targeted by or of any interest to the Congolese government or authorities, and concluded that he had exaggerated or fabricated his claim of past harm or of fear of any future harm of any sort upon his return to Congo that his claim for non-refoulement protection failed on all applicable grounds.   

8.On 17 September 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 dated 30 November 2018 he just stated that he does not agree with the decision as it did not take into account of some important points of his history in Congo but without providing any details or particulars or elaboration as to what they were other than some copies of some news reports about the Congolese authorities or armies without any proper English translations or explanation as to their relevancy to his claim, nor was he able to do so at the hearing of his application.

9.By then the Applicant was also seriously late with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.As the last day of the three-month period for him to file his Form 86 fell on 18 November 2017, the Applicant was therefore some 10 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration Department [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of 10 months must be considered as very substantial and excessive, for which he explained at the hearing of his application that as he was no longer legally unrepresented and was unaware of the rules, and as he needed to seek help from his friends with his intended application that by the time he was able to do so, he was already out of time with his application.

12.The record shows that the Board’s decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, and as ignorance of the rules can never be accepted an excuse for their non-compliance, I am not satisfied that the Applicant has provided any good reason for his such serious delay.    

13.As for the merits, if any, of the intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

14.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.

15.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 53 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made on his behalf by his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.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.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 12^th day of November 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