Kparsuah Robert Gbadeyah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 38/2019

[2023] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 38 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.The applicant applies for leave to apply for judicial review of the Decision dated 2 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 Liberia.  He entered Hong Kong as a visitor on 10 February 2017 and was permitted to remain until 24 February 2017.  He did not depart and had overstayed since 25 February 2017.  On 28 February 2017, he surrendered himself to the Immigration Department.  On 10 March 2017, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Gio tribe.

5.The applicant claimed that his father was a member of Krahn tribe and so was their former president Doe.  In the 1980s, Doe ordered the killing of members of Gio tribe and the applicant’s father, as the lieutenant of the army, was the one who executed the orders.  Doe was overthrown in 1990 by a rebel group led by a Gio tribe member.  In 1997, Charles Taylor became the president of Liberia and formed an alliance with Gio tribe to target Krahn tribe members for revenge.  The applicant’s father was killed in a civil war between Krahn tribe and Gio tribe.  Thereafter, the applicant and his mother were lucky to escape from the massacre against Krahn tribe on 18 September 1998.  Unable to cope with the frustrations, the applicant’s mother passed away in 2005.  While the applicant did not encounter any problems from 2005 to February 2017, he was constantly under the fear that he would be killed by the Gio tribe.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 10 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) his dispute with the members of Gio tribe, if any, was solely private and personal in nature [13]; (iii) state protection would be available to him [14]-[16]; and (iv) internal relocation was a viable option [17]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 11 October 2018, the Board conducted an oral hearing for his appeal.

9.Having considered the applicant’s evidence, the Board made the following findings.  It accepted the material parts of the applicant’s claim, namely, that his membership with the Krahn tribe, the hate between Krahn tribe and Gio tribe, the role of his late father and the awareness of the neighborhood about his father’s involvement in the civil war [32].  However, on his own evidence, the applicant was never physically harmed.  He was only verbally threatened [32].

10.The Board accepted that there were tensions between Krahn and Gio tribes [34].  However, as time went by, the situation was greatly improved [35]. While the disputes still existed, it appeared from the country of origin information (“COI”) gathered by the Board that the conflicts between Krahn and Gio tribes were less serious than claimed by the applicant [36]-[39]. Meanwhile, the Board also rejected the applicant’s claimed scandal of the disappearance of 16 billion Liberian dollars after George Weah was elected and refused to accept that this scandal, even established, could support the applicant’s claimed risk of harm [40]-[43].  As the applicant was never injured and he failed to prove that there was any animosity directed towards him due to his father’s actions or any animosity had intensified over time, the Board refused to accept that the applicant had substantiated his claim.  as a result, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 7 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said he rejects the Board’s Decision as it disregarded his dangerous situation.

DISCUSSION

13.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

15.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.”

16.The Board had assessed the applicant’s claim and found that it was not substantiated. There is no valid reason 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.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^th day of February 2023

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