Assohoueto Senami Mathieu v. Torture Claims Appeal Board

HCAL 84/2020

[2023] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 84 OF 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of both Nigeria and Benin of West Africa who arrived in Hong Kong on 29 December 2015 as a visitor with permission to remain as such up to 2 January 2016 when he did not depart and instead overstayed, and was arrested by police some 7 months later on 19 August 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria or Benin he would be harmed or killed by some Islamic militants for his parents’ conversion of their religion from Islam to Christianity. He was subsequently released on recognizance pending the determination of his claim.

2.According to information provided by him to the Director, the Applicant was born in Abomey, Benin but raised as a Muslim by his parents in Nigeria, but later when his parents converted their religion from Islam to Christianity, they were threatened and attacked by the local Islamic militants that his father was subsequently killed, but when the Applicant and his mother managed to make their escape from Nigeria to Benin, they encountered the same threats from those Nigerian militants who later also killed his mother.     

3.As the Applicant feared for his life in both Nigeria and Benin, he therefore departed for Hong Kong on 29 December 2015 where he subsequently overstayed, and upon his arrest by the police some 7 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 June 2018 and attended screening interview before the Immigration Department with legal representation.             

4.By a Notice of Decision dated 25 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”).

5.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 Islamic militants upon his return to Benin as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he had also been targeted by the Islamic militants for harm during his stay in Benin or any reason for there still be any adverse interest in him all these years after he left the country, that in any event in the absence of 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 Benin with a large population of 11 million people spread across a vast territory of more than 110,000 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 district in large cities where it would be difficult if not impossible for anyone to locate him.

6.On 7 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 28 and 30 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 December 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found numerous inconsistencies discrepancies and omissions in the Applicant’s evidence between those given earlier to the Director and those to the Board in all major aspects of his claim coupled by his inability or unwilling to provide any details of his personal history in Nigeria or Benin and that what information he had provided were vague and lacking in almost all relevant and credible details, while much of his evidence at the hearing were vague, evasive and failed to respond directly to the questions asked that based on the available evidence that the Board was not satisfied that he has told the truth about any of his key claims, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 7 months later and only after his arrest by the police that the Board rejected his claims about his parents’ religious beliefs that they were originally Muslims who had converted to Christianity, or that they were subsequently killed by Islamist militant group, or that he left either Nigeria or Benin for fear of harm from those Islamist militants to escape to Hong Kong as alleged, and concluded that his claim for non-refoulement protection failed on all applicable grounds.   

8.On 8 January 2020 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 without putting forward any proper ground to challenge the decision, 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.

9.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.

10.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 77 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

11.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Benin, 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 has recently filed an affirmation requesting to withdraw his application as all his problems have been solved that he now wants to return to his home country.

14.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem returning to his home country, I according dismiss his leave application.

Dated the 30^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