Case Document

100%Judiciary

HCAL 874/2019

[2023] HKCFI 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 874 of 2019

BETWEEN
	Massaki Kelvine Richard	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.The applicant applies for leave to apply for judicial review of the Decision dated 19 February 2019 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 Tanzania. He entered Hong Kong on 21 May 2010 and was permitted to remain as a visitor for 90 days. However, he did not depart and had overstayed. In July 2010, he was arrested by the police. On 13 September 2010 and 8 April 2014 respectively, he lodged the non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his father, Massaki Richard, because he lost his father’s investment in his business.

5.According to the applicant, his fear of harm was from his father. His father was politically connected and had a bad temperament. During the applicant’s childhood, he was once burnt on the arm by his father as he left home without his permission. He also heard similar stories about his father’s ill-treatments towards his brothers and even their neighbors. In early 2010, the applicant’s father encouraged him to go to China and source supplies for his mobile phone business. His father gave him US$100,000 as fund. However, while the applicant was in China, the fund was stolen from his hotel room. He telephoned his father who was furious and threatened to kill him if he could not find the money. Out of fear, and considering his father’s previous ill-treatments towards his brothers, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraphs 5 to 14 of the Notice of Decision dated 29 May 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. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from his father indicated an unlikelihood of future risk of harm [21]; (ii) state protection would be available to him [22]; and (iii) internal relocation was a viable option [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 November 2018, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board cast doubt on several material aspects of his claim. In particular, the Board found that it was unreasonable for the applicant to bring US$98,000, which represented 100 times the average GDP per capita of a Tanzanian citizen, and leave them in an unlocked drawer without taking a minimum precaution, especially when the applicant was raised by a claimed ruthless father, the upbringing of which should have made the applicant more cautious [16]. It also disbelieved the applicant’s version that the police in Guangzhou would not assist him and noted that the applicant only made one attempt to seek assistance, which was unusual for someone who lost a large sum [17].

10.Meanwhile, the Board also refused to attach credence to the applicant’s claimed lack of police assistance in his home country as it was a mere speculation [20]. The applicant’s delay in seeking protection also undermined his credibility [21]. In assessing the individual grounds, the Board also found that the dispute was a private one without state involvement, and that state protection and internal relocation were both available to him [23]-[31].

11.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 29 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he does not want to go back in his country because his father will kill him as he had lost the money he gave him for the business.

DISCUSSION

14.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).

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

16.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.”

17.The Board, for the reasons given, had rejected the applicant’s evidence on the facts of his case and it found that he was not under any real risk upon his return to his country. The reasons in paragraph 13 are not valid to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.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 15^th day of June 2023

(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 15/6/2023 Massaki Kelvine Richard 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 15/6/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7386/17/6/82/TA12 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 875/17 (Formerly RBCZ/1357/10) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)