Kombi Olivier Christian v. Torture Claims Appeal Board

HCAL 1259/2019

[2023] HKCFI 1283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 1259 OF 2019

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Gabon, Central Africa, who arrived in Hong Kong on 14 December 2014 as a visitor with permission to remain as such up to 19 December 2014 when he did not depart and instead overstayed, and on 23 December 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Gabon he would be harmed or killed by his half-siblings due to their disputes over the inheritance of their father’s estate. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Kango, Province of L’estuaire, Gabon, Central Africa, where his father was a wealthy businessman who ran a successful coffee business and owned properties, and had 6 wives with more than 20 children with the Applicant being the only child of his Cameroonian mother and hence was frequently looked down upon by his half-siblings.

3.After leaving school the Applicant worked in an electronic company in Libreville where he later ran his own shop selling mobile phones.

4.In 2012 his father passed away leaving his entire estate to all his children including the Applicant in equal shares under his will, but his half-siblings ganged up against the Applicant and refused to let him share in his father’s estate, and during one of his confrontation with his half-siblings over their decision, one of his half-siblings hit him with a broken bottle and injured his left wrist and fingers, while his other half-siblings threatened that next time he would be killed if he still insisted to share in his father’s estate.

5.After the incident the Applicant fled to Rio to take shelter in an uncle’s place, and in January 2013 he departed Gabon for South Africa where he found a job to make his living, but after being robbed on the street in mid-2014, he felt it was no longer safe to remain in South Africa and therefore returned to Gabon in July 2014 to stay with his uncle, but as he still feared of being located by his half-siblings, he departed Gabon again on 14 December 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 February 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his half-siblings upon his return to Gabon as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private family dispute between them without 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 Gabon with a large population of 1.7 million people spread across a vast territory of more than 267,000 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 the country away from his home district in large cities such as Port-Gentil where it would be difficult if not impossible for his half-siblings to locate him.

8.On 8 March 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 20 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of dispute with his half-siblings over his inheritance of his father’s estate but found no reliable evidence of any real intention of his half-siblings to seriously harm or kill him, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Gabon as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by his half-siblings that his claim for non-refoulement protection failed on all the applicable grounds.

10.On 9 May 2019 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 or in his supporting affirmation of the same date, nor did he request any oral hearing for his application. 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.

11.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.

12.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective 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 Gabon, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 15^th day of May 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