Pale Vincent v. Torture Claims Appeal Board

HCAL 97/2021

[2022] HKCFI 2308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 97 of 2021

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 37-year-old national of Cote d’Ivoire or Ivory Coast who arrived in Hong Kong on 17 June 2019 as a visitor with permission to remain up to 19 June 2019 when he did not depart and instead overstayed, and on 25 June 2019 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Cote d’Ivoire he would be harmed or killed by his paternal uncles and cousins over his conversion of his religion from Islam to Christianity. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Abobo, Abidjan, Cote d’Ivoire as a Muslim by his parents where everyone in the family were Muslims, but at the age of 12 he was sent by his mother to Ghana to reside with her Christian friend as she wanted to convert her own religion into Christianity and also for him but feared that he would be harmed by his uncles and cousins who were all Muslims and would object to his conversion into Christianity.

3.The Applicant stayed in Ghana for the next 10 years during which he formally became a Christian. In 2007 he returned to Cote d’Ivoire to attend his mother’s funeral, during which his uncles and cousins discovered that he had converted to become a Christian and threatened to kill him unless he re-converted back into a Muslim, and so the Applicant fled from his country to return to Ghana. 

4.In 2011 the Applicant returned to Cote d’Ivoire but stayed away from his home town and kept a low profile, but one day in April 2019 he was spotted by one of his uncles who threatened to kill him if he remained as a Christian in Cote d’Ivoire. Fearing for his life, the Applicant departed the country in June 2019 for Nigeria and China before arriving in Hong Kong on 17 June 2019 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 September 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 26 November 2019 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his uncles or cousins upon his return to Cote d’Ivoire due to the low intensity and frequency of past ill-treatment from them, that his problem with them was a private family dispute without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to the country, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Cote d’Ivoire with a large population of 26 million people spread across a vast territory of more than 322,000 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 Cote d’Ivoire away from his home district in large cities such as Bouake where it would be difficult if not impossible for him to be located by anyone.

7.On 2 December 2019 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 6 August 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 November 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s evidence of fear of risk of harm from his uncles and cousins over his conversion of his religion from Islam to Christianity, but found no reliable evidence of any real intention of his uncles or cousins to seriously harm or kill him upon his return to Cote d’Ivoire, and that in any event in the absence of any official involvement that state/police protection would be available to him if needed to negate such risk that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 28 January 2021 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 affirmation of the same date he just stated that the decision is not correct but without any details or particulars or elaboration why it was so. As such 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 reasonably arguable basis for his intended challenge.

10.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.

11.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Cote d’Ivoire, 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.                

12.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.

13.Furthermore, the Applicant recently on 7 June 2022 filed an affidavit requesting to withdraw his application as he has settled his dispute with his family and that he wants to return to his home country.  

14.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that he has already resolved his problem that he wants to return to his home country, I accordingly dismiss his leave application.

Dated the 27^th day of July 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