Kpadenou Vilevo v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 244/2019

[2022] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 244 of 2019

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

2.The applicant did not request a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with 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 Togo.  He entered Hong Kong as a visitor on 26 March 2011 but did not depart when his limitation of stay expired.  He had overstayed.  On 18 April 2011, he surrendered to the Immigration Department.  On 6 June 2012, he lodged a torture claim.  His torture claim was not processed and subsequently taken as a non-refoulement claim under the unified screening mechanism. 

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by members of Rally of the Togolese People (“RTP”). According to the applicant, RTP was the political rivalry of the applicant’s party, Union of Forces for Change (“UFC”).  The applicant joined the UFC in 2008 and was involved in promoting the party.  Since the end of 2010, he started to receive phone calls of threats from RTP members asking him to stop working for the UFC.  In late January 2011, three unknown men claiming to be members of RTP visited the applicant’s house and threatened the applicant’s parents that, if the applicant did not cease to work for UFC, they would kill him.  Out of fear, the applicant left for Hong Kong for protection.  Details of his claim were set out at paragraph 9 of the Director’s Decision and paragraph 11 of the Board’s Decision as 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 27 December 2017, the Director refused his claim (“the Director’s Decision”).  The Director found that no ground was present to believe that the applicant would face real or substantial risk of harm upon refoulement because (i) there was no evidence to show that the applicant was a target of the RTP members and/or he was ever inflicted with any harm by them [13]-[17]; (ii) state protection would be available to him [18]; and (iii) internal relocation was an option open to him [19]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 21 September 2018, during which the applicant was given the opportunity to make submissions to the Board with the assistance of an interpreter [27]. 

9.The Board considered the applicant’s evidence.  It found that his evidence on the material aspects of his claim, such as his support for UFC, his responsibilities therein and his claimed visits from RTP members, vague and inconsistent [29]-[32].  The Board also found that the country of origin information did not indicate that low level supporters were targeted [33].  In light of the applicant’s failure to provide cogent explanations for these inconsistencies, the Board refused to accept the applicant’s evidence [34]. Thus, the Board rejected his claim on the applicable grounds and dismissed his appeal. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 25 January 2019 for leave to apply for judicial review of the Board’s Decision. 

11.In his affidavit in support of his application, he complained:

(1)   the Decision had ignored the danger he had to face;

(2)   there were not sufficient police personnel to guarantee his safety in Togo;

(3)   police in Togo are corrupt and there were other killings through the influence of politicians had increased;

(4)   there were contract killings; and

(5)   country of origin information was not as true as the local news. 

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 applicants’ 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 Board had considered the applicant’s evidence and it rejected his evidence because of the inconsistencies, coupled with the applicant being unable to give satisfactory explanation for the inconsistencies.   Since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim.  The fact that police of Togo is corrupt and inefficient to protect him is not a valid reason for his claim.  Nobody can be guaranteed safety in any country.  Contract killing may be in Togo, but it is not a specific threat to him.  He has no evidence to support it.  The Board is entitled to rely upon the country of origin information for the assessment of his case.  The newspaper cuttings are hearsay evidence.  The Board is unable to test the evidence. 

16.The applicant does not have any valid ground to challenge the Board’s Decision.

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 realistic prospect of success in his intended judicial review. 

CONCLUSION

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

Dated the 28^th day of March 2022

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