Shahoza Vicent Kennedy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1620/2019

[2023] HKCFI 2944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1620 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing date was fixed and the applicant appeared before the Court on 17 May 2023. However, the applicant was absent without prior notice to the Court. His application is therefore dealt with 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 as a visitor on 11 February 2015 and was permitted to stay until 12 May 2015. On 13 May 2015, he surrendered to the Immigration Department for overstaying. On 14 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his former employer Dixon because he lost Dixon 100 million Tanzanian Shillings.

5.According to the applicant, he worked for Dixon in the spare parts store and was responsible for sales and supervising his co-workers. In the end of 2014, during Dixon’s business trip to Japan, the applicant acted in his position to operate the units and bank the cashes received. A few days later, when the applicant was on the way to the bank with 100 million Tanzanian Shillings, he was robbed by two unknown persons. The applicant reported to the police. However, the police did not take further action. He also informed Dixon of the robbery. Nevertheless, Dixon believed that the applicant stole the money.

6.Upon his return, Dixon went to the applicant’s house and threatened to kill him if the money was not returned. He also fired the applicant. A week later, the applicant’s sister told him that Dixon went to his house with a pistol threatening his sister about his location. Feared that Dixon would kill him, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 2 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

(ii)  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”);

(iii)  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

(iv)  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to him [16]-[20]; and (iii) internal relocation was a viable option [21].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter in the Swahili and English languages [18].

10.The Board considered the applicant’s claim and his oral testimonies at the hearing [7]-[34]. Having considered the claim, the Board found that the applicant’s claim lacked credibility due to the inconsistencies, implausibility and vagueness of his evidence [36]. In particular, the Board noted that the applicant was inconsistent as to when he obtained the passport. He claimed before the Board that he obtained the passport because of the dispute with Dixon. Yet, the Board noted that the passport was obtained long before the claimed date of the dispute and his explanations were self-serving, implausible and untrue [37]-[39]. Also, the Board identifies the inconsistencies in his evidence in relation to the key events, such as Dixon’s visits and threats against himself and his sisters, as well as the police’s report [40]-[41]. In addition, the Board found that his failure to seek the police’s assistance was unreasonable and inconsistent and even if his assertions were true it was implausible and far-fetched to suggest that Dixon would kill him instead of recovering the sum through legal routes [42].

11.In these premises, the Board found that the applicant’s claim lacked credibility [43]. For the above reasons, 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 14 June 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 ‘I am not satisfied with the decision given by torture claim appeal Board. I have problem in my country. Please help me to stay here until my problem will be solved.’

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 above, did not believe his evidence on the facts of the applicant’s case. Those grounds in paragraph 13, supra 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 23^rd day of November 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