Case Document

100%Judiciary

HCAL 766/2019

[2022] HKCFI 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 766 of 2019

BETWEEN

	Gbetogo Houenagnon Pascal	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 15 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for him. However, he was absent without prior notice to the court. I decided to 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 national of Benin. He last entered Hong Kong on 30 January 2016 as a visitor. He overstayed and surrendered to the Immigration Department on 21 February 2017, claiming for non-refoulement on 3 March 2017.

5.According to the applicant, if he returned to Benin, his own country, he would be harmed or killed by the people of his village because he refused to inherit the Crown of his town, Ekpe. His father was the King of the town and he passed away. By custom, he had to inherit the Crown and become King of Ekpe. He was unwilling to do so because the worship of idols and fetishes is inconsistent with his Christian belief. Also, he does not want his son to be the King of Ekpe. He has a daughter. If he becomes King, he has to procreate a son for inheritance, which he refused to accept. The villagers threatened to kill him if he did not inherit his father’s kingship. They threw animals’ carcasses without their heads such as pigs and chickens into the compound of his house. They claimed that only if he died, the kingship could be passed to another person. He had to leave Benin with his wife and daughter to live in Nigeria. He intended to go to Europe, but he was unable to obtain a passport for Europe. He finally came to Hong Kong, leaving his wife and daughter in Nigeria. According to his wife and friend in Benin, the villagers are still looking for him and may kill him if they find him. He would not be protected by police who are corrupt. Benin is a small country with population of about 11 million, it is not plausible to relate to anywhere else safe. Details of his story are set out in paragraph 6 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 a Notice of Decision dated 24 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial reason for believing that he would be subjected to any real risk of being harmed or kill upon return to Benin in view of the low intensity and frequency of past ill-treatment from the villagers after his refusal of inheriting Crown of Ekpe [13]; there was no evidence to show that risk of harm from the villagers was real or imminent [14]; that there was no evidence that the state was involved and therefore state protection was available to him [15]-[19]; and that internal relocation was an option open to him [20-23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board scheduled an oral hearing on 4 December 2018 for his appeal.

9.Having considered the applicant’s evidence, the Board dismissed his appeal as it did not accept his evidence that he is the uncrown king of Ekpe for the reasons that he did not seek protection shortly after arriving in Hong Kong and only did so after one year; that he did not speak French, which is a main language in his country; that he said that his wife and daughter had to change their names in Nigeria but he also said that they were safe in Nigeria, which begs the question why they had to change their names. In the final analysis, the Board did not accept his evidence that he was uncrown king of Ekpe. See paragraphs [48-62]. His claim is therefore without factual basis.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 19 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that his problem in Benin has not solved and the Director and the Board had failed to show the cause for cancelling his claim, so they had not followed the law of Hong Kong.

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(1).… …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.The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. His grounds in support of his application are, at most, his opinions without any evidence to support.

16.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.

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

CONCLUSION

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

Dated the 7^th day of March 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7 March 2022 Gbetogo Houenagnon Pascal Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9412/17/12/79/BE7 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2605/17 (Formerly RBCZ 11051/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)