Hounsou Trin Gbetome Valentin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2183/2019

[2024] HKCFI 3005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2183 OF 2019

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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 29 July 2019 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 asked for a hearing. He appeared before the Court on 21 October 2024.

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 Beninese. He entered Hong Kong as a visitor on 12 November 2016 and overstayed since 27 November 2016. The applicant surrendered to the Immigration Department on 29 November 2016 and he made a non-refoulement claim on 31 July 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Muslims and his uncle.

5.According to the applicant, he is a Christian. He migrated to Nigeria with his mother at the age of 6, after which he was threatened by the Muslims on numerous occasions. One evening in the summer of 2011, the applicant and his Christian friends were even attacked when they were playing football, during which the applicant suffered a slash injury to his right ankle while escaping from the scene. In around 2014, the applicant went back to Benin and opened a shop using the money borrowed from his uncle. In April 2015, he was robbed and was therefore unable to repay his uncle. Since then, his uncle started threatening him. Out of fear, the applicant sold his business and travelled to Nigeria. Eventually, he left Nigeria on 29 October 2016 and entered Hong Kong from Mainland China on 12 November 2016.

6.The applicant had never sought assistance from the police because he believed that they could not protect him. He considered internal relocation not viable as well because his uncle could still locate him and that he was afraid of the Muslims in Nigeria. He also had no one to rely on elsewhere apart from his maternal grandparents, whom he did not want to trouble.

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 24 August 2018 (“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 Benin and Nigeria [13]-[16]; (ii) state protection would be available [17]-[23] and (iii) internal relocation would be viable [24]-[31].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 18 July 2019, the Board conducted an oral hearing.

11.The Board began by considering whether the applicant is of dual nationality. As there is insufficient evidence to establish that the applicant is a Nigerian or a habitual resident in Nigeria immediately before coming to Hong Kong, the Board would only determine his claim with focus on Benin [43]-[67].

12.Upon consideration of the country of origin information, the Board noted that the applicant’s residence in Nigeria is predominantly Christians. Although it was accepted that the applicant and his Christian friends might have some physical conflicts with local Muslims, the Board considered that such threat was not personal to the applicant [84], [90], [97]-[99].

13.Meanwhile, the Board found it implausible that the applicant’s uncle would lend such a great sum of money to him, particularly considering that he never had any business experience [107]-[111]. The Board therefore did not accept that the applicant borrowed money from his uncle to startup his business and that he was under threat from his uncle because he could not repay the loan to him after he was robbed [153]-[154].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [24]-[32], [156]-[167]. In any event, state protection and internal relocation would also be available to the applicant [33]-[37], [151], [168]-[171].

15.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

16.The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affidavit in support of his application, the applicant attached a copy of the Board’s Decision without raising any specific ground to challenge the Board’s Decision.

DISCUSSION

18.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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not mean that the Board was wrong. But he further said that he had a wife who is a Hong Kong resident and a daughter of 4 years old.

20.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.”

21.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

22.The fact that he has a family in Hong Kong does not amount to a valid reason in support of his claim. The Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, CJ Ma, Mr Justice Ribeiro PF, Mr Justice Fok PJ, Mr Justice Stock NPJ and Mr Justice French NPJ, 4 April 2019 held:

“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11.”

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

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

CONCLUSION

25.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 appeared in person.