Kanda Joao Pedro Alias Kibesi Ngituka Yves and Others v. Torture Claims Appeal Board

HCAL 1718/2021

[2025] HKCFI 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1718 OF 2021

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 1^st, 2^nd, 3^rd and 4^th Applicants’ application for leave to apply for

judicial review be dismissed.

Observations for the Applicant:

1.The Applicants are a married couple and their 2 children all from the Democratic Republic of the Congo (“DRC”) who arrived in Hong Kong on 13 December 2017 from Angola with false identities as visitors with permission to remain as such up to 15 December 2017 when they did not depart and instead overstayed, and on 21 December 2017 they surrendered to the Immigration Department when they revealed their true identities as nationals of DRC and raised a joint non-refoulement claim for protection on the basis that if they returned to DRC they would be harmed or killed by the DRC authorities as the husband was a member of the political party Union for Democracy and Social Progress (“UDPS”) for having taken part in protests against the government and had subsequently escaped from the police detention. They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born and raised in Kinshasa, DRC. After leaving school he ran his own garment business in his home district, married his wife the 2^nd Applicant (“A2”), and raised a family with 2 children, the 3^rd Applicant (“A3”) a son born on 14 May 2014, and the 4^th Applicant (“A4”) a daughter born on 19 October 2016.

3.In 2009 A1 started to support UDPS regularly attended their local meetings and activities as opposing party against the DRC government, during which he together with his fellow UDPS were frequently arbitrarily arrested detained and tortured by the police for taking part in protests against the then President Kabila and his government.

4.During one such protest in April 2017 A1 together with some of his fellow UDPS members were arrested and detained by the police during which they were beaten several times a day, but after being detained for 7 days A1 managed to make his escape from the police cell with the help of a sympathetic police officer, and fled to Mpasa City where he hid in a friend’s place before moving on to Lukaya to hide in another friend’s place.      

5.As he was still fearful of being arrested and harmed by the DRC government and that something bad would also happen to his family, A1 decided to leave the country with his family, and with helps from his friends he and his family were supplied with false Angolan passports with fake identities and departed DRC on 10 December 2017 for Angola and Dubai before arriving in Hong Kong where they overstayed and subsequently raised their non-refoulement claims for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 13 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 17 August 2018 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 Applicants’ claim and doubted the credibility of A1’s claim of being a UDPS member or supporter or of being detained and tortured by the DRC authorities or of his subsequent escape with the help of a police officer that his claim of fear of harm to him and his family by the DRC authorities that caused them to leave their country to come to come to Hong Kong for non-refoulement protection was rejected as unreliable and incredible, that even if his claimed account were true that that reliable and objective Country of Origin Information (“COI”) show that President Kabila lost the 2018 election which was won by the president of UDPS Tshisekedi who then became the President of DRC in 2018 with UDPS also became the country’s ruling party that it is not accepted that A1 as a UDPS member or his family would face any risk of being harmed by the government or authorities and that state protection would be available to them upon their return to DRC if so desired, and that in any event reasonable internal relocation alternatives are also available in DRC with a large population of 83 million people spread across a vast territory of more than 2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his family to other areas of the country away from his home district in large cities without any risk of being located by anyone.

8.On 30 August 2018 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 27 August 2021 with their lawyers before the Board during which A1 and A2 gave evidence for themselves and their family and answered questions raised of their claims by the Adjudicator for the Board and with submissions made on their behalves by their lawyers. On 29 November 2021 their appeals were dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of his claim of being detained and tortured by the DRC police or of his escape from the police cell as unreliable and incredible, that there is no evidence of him or his family being pursued by the DRC authorities, and that reliable COI show that many political opponents of the former regime of DRC have since returned safely to the country without any harm or risk of being arrested or persecuted by the present DRC government of the former president of UDPS that it is not accepted that A1 or his family would face any risk of harm from the government or authorities upon their return to DRC, and that even if indeed A1 was being wanted by the authorities for his escape from the police cell in 2017 and is to be lawfully charged that he would be regarded as a fugitive of the law and hence would not be entitled to non-refoulement protection, and concluded that the claims of all 4 Applicants for non-refoulement protection failed on all the applicable grounds.    

10.On 17 December 2021 the Applicants filed their Form 86 as amended for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in their supporting affirmation of the same date in which they just asserted that the decision contained significant legal errors and was substantially unfair but without providing any further details or particulars or elaborations as to what such errors were or in what way was the decision unfair. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

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 Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing the Applicants in their oral evidence and answers to questions raised of their claims as well as their lawyers, 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 Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

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 Applicants’ claims.

14.Moreover, A1 has since filed an affirmation requesting to withdraw their leave application as he and his family have been given “private sponsorship” to go to Canada.

15.For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of A1’s latest confirmation of his intention for him and his family to leave Hong Kong for Canada, I accordingly dismiss their leave application.

16.As the Court has recently been informed by the Immigration Department that the Applicants have since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order to the Applicants in DRC and/or in Canada. 

Dated the 25^th day of February 2025

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