Johnson Benjamin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1184/2023

[2024] HKCFI 3011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1184 OF 2023

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 June 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant was legally represented.  However, at the hearing on 14 March 2024, his solicitor applied to cease acting for him.  The Court approved the application.  Since the applicant was absent, the Court dealt with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 44, is a Liberian.  He last entered Hong Kong as a visitor on 12 February 2012 and overstayed since 18 February 2012.  The applicant was arrested by the police for overstaying on 11 September 2012 and he made a non-refoulement claim on 13 September 2012.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his extended family members and people in the community because he (i) converted from Islam to Christianity and (ii) was involved in a property dispute.  On 18 June 2015, the applicant was arrested for assault, rape and indecent assault.  On 28 October 2016, he was sentenced to imprisonment of 10 years for the said offences.

5.According to the applicant, he and his father had been the victims of harassment and violence after they converted from Islam to Christianity.  In the 1980s, the applicant inherited his father’s properties after he passed away.  In 2009 and 2011, the applicant was kidnapped and tortured twice, during which he was requested to convert back to Islam and to relinquish properties his parents had left for him.  One of his uncles was even burnt to death in 2018 when he tried to protect the applicant’s properties.

6.The applicant claimed that he had reported the matter to the police, but they failed to provide him with any assistance.  He also considered internal relocation not viable because his home, being at the capital city of Liberia, is already the safest place in the country.

7.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 13 May 2022 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

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

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk.  The Director found that: (i) the low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Liberia [15.1], [15.3]; (ii) there was no evidence showing that his enemies had the means to locate him anywhere within Liberia [15.4]; (iii) the claimed risk of harm should have dissipated given the elapse of time [15.5]; (iv) the country of origin information (“COI”) indicated freedom of religion in Liberia [15.7]; (v) state protection would be available [16]-[17] and (vi) internal relocation would be viable [18].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 2 December 2022, the Board conducted an oral hearing.

11.Upon consideration of the COI, the Board noted that Liberian law prohibits discrimination on the basis of religion and its Constitution stipulates freedom of religion.  In fact, Liberia is a multi-religious country with a significant Christian majority, so that Christians and Christian converts do not generally face a real risk of harm [136]-[148].

12.Meanwhile, given the vague and inconsistent evidence provided by the applciant, the Board considered that he had fabricated his claims about the two kidnapping incidents and about his uncle being killed while protecting his property [154]-[168].  The applicant’s claimed conversion from Islam to Christianity was equally not credible as the Board found that baptism is a fundamental aspect of conversion but he was only baptised after he came to Hong Kong [173]-[182].

13.Based on such findings, the Board rejected the applicant’s claim in its entirety.  It was not accepted that the applicant had ever been kidnapped/assaulted or that he was forced to relinquish his properties due to his conversion to Christianity.  The applicant’s claim about his uncle being burnt to death when defending his property was also rejected [183]-[188].

14.The Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [26]-[40], [191]-[199].  His appeal was therefore dismissed and the Director’s decision was confirmed.

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

15.The applicant has filed Form 86 dated 13 July 2022 for leave to apply for judicial review of the Board’s Decision.

16.The applicant relies on the grounds below in support of his application.

(1)  The Board misdirected itself as to the reasons for concluding that his evidence was substantially unreliable; and particularly so in relation to critical aspects of his claim, thus resulting in unreasonable and/or irrational and/or illogical Decisions.

(2)  The Board has failed to take into consideration his evidence in relation to the 2 kidnappings, thus resulting in unreasonable and/or irrational and/or illogical Decisions.  The applicant argues that the Board had not pinpointed the evidence to show that he evidence in general was vague, inconsistent and far from convincing, referring to the paragraph 133 of the Board’s Decision.  He also referred to paragraph 154 of the Board’s Decision on his allegations of his 2 kidnappings or otherwise physically harmed while he was living in Liberia on account of his religious profile or for any other reason, which the Board also found his evidence as vague and inconsistent.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

19.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.”

20.The applicant now challenges that the Board did not have evidence to say that his evidence was vague, inconsistent, resulting in it rejecting his evidence on the facts of his claim. The Board’s conclusion can be found from paragraphs 153-168.  The applicant did not mention that he was kidnapped in his statement to the Director.  When asked on details he was detained, first he said he was not clear about that.  Subsequently, he gave details as to the number of people kidnapping him and for a duration 10 to 14 hours.  His evidence on how he managed to escape was more problematic; for example, the Board said:

“159. In relation to the first kidnapping incident, the Appellant claimed in response to questioning from his counsel as to how he had managed to escape, that he had taken advantage of a moment his kidnappers were distracted by discussions regarding having him sign land transfer documents to escape. Later, in the same hearing, in response to questions by the Director’s counsel that Appellant have a different account, namely that his kidnappers loosened the ropes tying his hands and feet because they were high on some unknown substance, and after they had smashed bottles on the walls, he retrieved some broken glass to cut through the rope binding his legs and then to escape.

161. Critically, the Appellant gave evidence that he reported both kidnapping incidents to the police. However, there is nothing in the documents filed by the Appellant to support this claim. …

165. Indeed, not only is no mention made of the kidnappings in the Appellant’s statement to the police, nor in either police declaration, but no mention is made in either of his affidavit. …

168. The Board finds that such omissions seriously undermine the Appellant’s claims to have been kidnapped either in 2009, or 2011 as claimed.  The Board has carefully considered the Appellant’s claims in relation to the two kidnapping incidents, and indeed the murder of his uncle Archie Boy, but having regard to the internal coherence of his statements, their consistency with each other and his relevant level of detail has been able to provide, the Board has formed the view that the Appellant is not a witness of truth and that he has fabricated claims in relation to him being kidnapped and mistreated and his uncle being killed while protecting his property….”

21.There is no reason that the Court should interfere with the Board’s finding of the facts.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

23.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear

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