Jones Jonathan v. Torture Claims Appeal Board

HCAL 1260/2019

[2023] HKCFI 1611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1260 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 43-year-old national of Sierra Leone who arrived in Hong Kong on 21 March 2016 as a visitor with permission to remain as such up to 4 April 2016 when he did not depart and instead overstayed, and on 3 May 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Sierra Leon he would be harmed or killed by the other wives of his father and/or by the village chiefs over disputes as to his succession right to be the village head upon his father’s death. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Panega, District Kenema, Sierra Leone where his father had a big family with several wives and 5 children including the Applicant as the eldest male, and where his father was the head chief of the village.

3.While he was working as a security guard in Freetown in December 2015, his father passed away and the Applicant was summonsed by his mother and other village elders to return to his home village to succeed to his father’s post as the head chief, but as those other wives of his father wanted their own sons to be the successor and threatened him not to compete for the post or else they would use black magic to harm or kill him.

4.As the Applicant was fearful for his life, he therefore informed the village elders that he would not want to succeed to his father’s post, but those village elders insisted that he must do so or else they would also harm or kill him.

5.To save his life from the threats from both sides, the Applicant therefore fled from his home village, and on 19 March 2016 he departed Sierra Leone for France and then China, and on 21 March 2016 he arrived in 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 4 June 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 16 July 2018 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 those other wives of his father and/or those village elders upon his return to Sierra Leone as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention or capability of any of them to seriously harm or kill him, that in any event they were private or family disputes 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 Sierra Leone with a large population of 6 million people spread across a vast territory of more than 71,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home village in large cities where it would be difficult if not impossible for anyone to locate him.

8.On 30 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the oral hearing scheduled on 20 November 2018 without any explanation, and accordingly the Board proceeded to deal with his appeal in his absence and on paper. On 25 February 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found various inconsistencies discrepancies and implausibility in the Applicant’s claim but which he failed to attend the scheduled hearing to explain or clarify that it doubted the credibility of his claim of fear of harm from those other wives of his father or the village elders over his alleged succession issues as the village head that caused him to leave his home country to come to and overstay in Hong Kong, and that in any event even if such risks were real that they arose from some private personal disputes without any state or official involvement that state or police protection would be available to the Applicant upon his return to Sierra Leone as well as reasonable internal relocation for him to move safely to other areas of the country away from his home village without any risk of being located that his claim for non-refoulement protection failed on all 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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 established by both the Director and the Board in their respective decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sierra Leone, 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 19^th day of June 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