MELEMOKO NDIALA SAINT JUSTE SEGUY LIONEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 738/2017

[2020] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 738 OF 2017

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D E C I S I O N

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1.  On 21 August 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no realistic prospect of success in his intended application.

2.  The Applicant now by a summons issued on 16 October 2019 seeks leave to appeal against that decision (“the Decision”) out of time, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 14 September 2019 after discounting the month of August 2019 for the court’s summer vacation, and hence he appeared to be late by about 4 weeks with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of 4 weeks cannot be said to be insignificant, for which he explained in his supportive affidavit that he in fact never received the Decision in the mail, and he was not aware of it until 26 September 2019 when he attended the court in person and was given a copy thereof.

5.  A search of the court record reveals that the Decision was indeed sent by post on 21 August 2019 but to the Applicant’s former address in To Kwa Wan which had since been returned through undelivered post, and while it is not clear when exactly did the Applicant inform the court of his current address in Yuen Long, the record does show that as early as in June 2018 that the court was already provided with his current address, but somehow the Decision was sent to his former address.  As such I accept that the Applicant did not receive the decision until 26 September 2019 when he was given a copy in person.  As such the last day of the 14-day period for him to appeal accordingly fell on 10 October 2019, and he was therefore only 6 days late with his intended appeal when he issued his summons now before me on 16 October 2019.       

6.  A delay of 6 days in the circumstances cannot, by any means, be regarded as significant, and given the fact that he was then no longer represented by the Duty Lawyer Service (“DLS”), and as he does not speak English and required language assistance to prepare his application, I am prepared to accept that he has provided a valid reason for his delay.

7.  As for the prospect of his intended appeal, the Applicant has provided two grounds of appeal in his summons as follows:

(a)  that the judge erred in law in finding that the Adjudicator’s assessment of Country of Origin Information (“COI”) was reasonable or fair; and

(b)  that the judge erred in law in finding that the Adjudicator had not erred in law in his assessment of BOR 2 risk.

8.  Before proceeding to consider the merits, if any, of these grounds or the prospect of the intended appeal, it would of course be necessary to first set out the relevant backgrounds of the Applicant which led to his non-refoulement claim, of which I propose to summarize them based on those as recorded in §18 of the Board’s decision as follows.

9.  The Applicant is a 33-year old national from Central African Republic (“CAR”) who arrived in Hong Kong on 5 January 2014 with permission to remain as a visitor up to 19 January 2014 when he did not depart, and 2 days later on 21 January 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to CAR, he would be harmed or killed by the rebel group Seleka for political reasons.  He was subsequently released on recognizance pending determination of his claim.

10.  The Applicant was born in Pissa, Bokanga, CAR to a family of Christians where his father was a senior health technician at the Ministry of Health conducting medical research on diseases, and was a supporter of the political party Kwa Na Kwa (“KNK”) which came into power in 2003 when its leader became the president.

11.  In 2009 the Applicant’s father together with several of his friends formed a political group in support of the president which was later accepted by KNK and became one of the advisers to the government.  Due to his father’s influence, the Applicant also joined KNK as a member and became politically active for the party in his local district.

12.  In 2012 Seleka, made up mostly of Muslim militias, started to conduct anti-government military actions by attacking various towns, killing their mainly Christian population and committing other mass atrocities which led to a civil war across the entire country.  Eventually in March 2013 Seleka overthrew the KNK government and took power with their leader appointed as the president who then disbanded the group.

13.  However, those ex-Seleka militias continued to loot against the Christian population and to purge against the remaining or former KNK members and supporters who became afraid to engage in any political activities and instead went into hiding.

14.  One day on 24 October 2013 the Applicant in his home saw a man from afar whom he could not see the face being abducted by some masked men of ex-Seleka militias at gun point.  Shortly thereafter he was told by a neighbour that the man abducted was in fact his father, but he was afraid to report the matter to the police as he believed they were of the same people from Seleka.

15.  On the following night on 25 October 2013, some armed Seleka men came to the Applicant’s home looking for him, but he managed to hide on the roof.  After the men left, the Applicant’s mother believed that having abducted his father the Seleka men were now going after the Applicant, and advised him to flee from their home district to take shelter in his cousin’s place in Bimbo, Bangui.

16.  The Applicant stayed in Bimbo for two months without incidents, but when he heard that one of the residents in the neighbourhood was killed by Seleka militias, he then decided that it was no longer safe to remain in CAR, and so on 19 December 2013 he departed for Cameroon, but when he learnt that Seleka militias had also carried out killings near the border between CAR and Cameroon, he therefore left for China on 23 December 2013, and then on 5 January 2014 he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

17.  By a Notice of Decision dated 27 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 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”).

18.  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 the Selaka people upon his return to CAR as low when there is no reliable evidence to suggest that his father had indeed been abducted by the Seleka people or that the Applicant had been specifically targeted by them, that relevant Country of Origin Information show that the social and political situation of CAR were improving with joint endeavours from the transitional government and various international peace-keeping forces there since 2014 when ceased fire agreement had been signed between the government and the Seleka militias with state protection available to the Applicant upon his return to CAR, as well as the availability of reasonable internal relocation within CAR with a large population of 5.2 million people spread across a vast territory of more than 622,000 square kilometers that it would be safe for the Applicant to relocate to Bangui where his mother and siblings had moved or to other regions in the south of CAR where the Seleka people had left.

19.  By a Notice of Further Decision dated 14 June 2017 the Director again rejected the Applicant’s claim upon receiving and considering further submissions from the Applicant relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights including right to life under Article 2 of HKBOR (“BOR 2 Risk”).

20.  By then the Applicant was in the process of appealing to the Board against the Director’s earlier decision, and for which he attended an oral hearing on 3 June 2016 before the Board.  On 7 July 2017 his appeal was dismissed by the Board upon finding that the Applicant had never been inflicted with any pain or suffering by the Seleka rebels who were not government officials, that with the ceasefire agreement between CAR rival armed groups and factions that it was unlikely that the Applicant would face a genuine and substantial risk of being subjected to ill-treatment by Seleka upon his return to CAR, that COI showed that the country was on the road to recovery with the rule of law re-established, and as it was in a much better situation than in Somalia, it concluded that it was safe for the Applicant to return to CAR.   

21.  On 6 October 2017 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, essentially on the basis that it was procedurally unfair and far below the high standards of fairness required for the following grounds or reasons stated in his Form:

(a)  that the Adjudicator failed to engage in a rational and/or reasonable evaluation of the relevant COI when he referred to the 2014 ceasefire despite the fact that the Applicant had submitted a report dated 17 May 2017 as to the ongoing violence in CAR;

(b)  that the Adjudicator cherry-picked the COI evidence by failing to evaluate them in their totality and by selecting to rely only upon those parts that were clearly outdated instead of the more updated and hence more accurate evidence submitted by the Applicant without providing reasoning for adopting such an approach;

(c)  that the Adjudicator erred in considering only the COI from 2014 to 2015 notwithstanding that the situation in CAR had greatly changed since that period as evidenced by the further updated evidence and information adduced by the Applicant and without providing any justification as to why the outdated materials were preferred;

(d)  that the Adjudicator failed to analyze and assess whether state protection exists in CAR;

(e)  that the Applicant was not afforded the opportunity during his appeal hearing to explain the updated situation in CAR; and

(f)  that the Adjudicator failed to provide any consideration in respect of the Applicant’s BOR 2 Risk.

22.  The Applicant however failed to appear at the scheduled hearing of his application on 21 August 2018 without any explanation, and Judge Lam proceeded to deal with his application in his absence, and as noted above on 21 August 2019 refused to grant leave to apply for judicial review, and which decision the Applicant now with the assistance from a NGO seeks leave to appeal. 

23.  Thus bring me back to my consideration of the prospect of the Applicant’s intended appeal.

24.  According to the skeleton submissions of Mr Albert Wong who appeared for the Applicant on pro bono basis, at issue are the Applicant’s supplemental submissions of 8 June 2017 which contained representations based on the latest COI reports which concerned the totality of his claim, and notwithstanding the fact that they were submitted in relation to the further assessment on risk against BOR 2, and although the Adjudicator had the Director’s Notice of Further Decision before him, it appears that he could only extrapolate the additional submissions as contained in the Further Decision and did not in fact have the Applicant’s submissions, and more importantly, the actual COI reports attached thereto before him.  

25.  Given the fact that the Adjudicator himself had held that the crux of the issue was whether CAR had stabilized enough, Mr Wong submits that the entirety of the Applicant’s claim thereby depended on how the Adjudicator considered the COI reports, but of which the Adjudicator failed to show in his reasoning how he considered and met the Applicant’s claim based on those latest COI reports.     

26.  Mr Wong also submits that in the context of the requirement for high standards of fairness, further accentuated by the fact that the Adjudicator did not hear oral arguments on the additional materials, it was therefore even more imperative that the Adjudicator showed how and why the additional arguments on the latest materials were not relevant or persuasive, but which he argues that the Adjudicator had failed to do, as it appears that the Applicant’s additional submissions were either not before him, or that he had failed to consider them sufficiently or at all, and hence the Applicant argues that Judge Lam had erred in finding that the Adjudicator’s assessment of the COI was reasonable and/or procedurally fair.

27.  I pause here first to note, as pointed out by Judge Lam in his decision [22], the Adjudicator did wrongly record that the Applicant appeared in person in his appeal before the Board, as according to a subsequent letter dated 23 August 2018 from DLS that he was in fact represented by his duty lawyer Ms Vicky Chung at the hearing on 3 June 2016, and hence it is not clear whether the Adjudicator did also wrongly record that the Director’s appearance was excused from the hearing given that the Applicant was then legally represented, and of which the Adjudicator had stated in the Decision about the submissions made for the Applicant and the Director in the appeal:

“28. I am indebted to Ms Vicky Chung for her able submission and the piles of COI in respect of CAR. It has taken me some time to digest. I find some of them were sporadic events. I have carefully considered all the information provided.

29. On the other hand, I do not find the submissions from the Director of Immigration too useful.”

28.  Judge Lam further recorded what happened after the hearing on 3 June 2016, but which was also not clearly stated in the Board’s decision, that the Duty Lawyer continued to represent the Applicant in the Director’s determination of his BOR 2 Risk, and that additional submissions were made to the Director on 8 June 2017 [23], of which the Director had referred to in his Further Decision of 14 June 2017, which were in turn also provided to the Board for the Adjudicator’s consideration of the Applicant’s appeal on all the applicable grounds including BOR 2 Risk, and of which the Adjudicator did confirm that he had carefully considered including the Additional Submissions from the Applicant [5] & [22].    

29.  I also note in the Board’s decision that the Adjudicator never raised any issue with the Applicant’s credibility as to his claims of the political involvements of his father and later of his own in CAR and all the incidents that led to his claimed fear of harm from the Seleka people upon his return to CAR, but having found that the Applicant had never been inflicted with any actual pain or suffering by the Seleka rebels who were not government officials and hence his claim was not established under either Torture Risk or BOR 3 Risk, the Adjudicator was of the view that the only issue in this case was persecution, as he stated in [27]:

“The only issue in this case is persecution. The crux of the issue is whether CAR has stabilized enough since the coup in March 2013 for the Petitioner to return to his country.

(i)  In the case of Sufi and Elmi v the United Kingdom, the European Court of Human Rights (“ECtHR”), the two applicants who were Somali nationals faced deportation to Somalia by the UK government.  At the material time, Somalia had no functioning central government and there was up-to-date Country of Origin Information (“COI”) showing that all significant parties to the conflict had continued to engage in indiscriminate violence without regard to the civilian population.  Violence spreaded throughout the region.  Based on the available COI, the ECtHR concluded that the situation of general violence in Mogadishu (the capital) was sufficiently intense to enable it to conclude that any returnee would be at risk of ill-treatment solely on account of his presence there.  The ECtHR further found that the situation in Somalia had been deteriorating.

(ii)  In Horvath v Secretary of State for Home Department [2001] 1 AC 489 at 500 F-H, it was held the standard of state protection required is one of a practical standard, taking into account the state’s duty to establish and to operate a system of protection against persecution of its own national.  It is not required that the state to provide protection that would eliminate all risk and amount to guarantee of protection.”

30.  The Adjudicator then proceeded to find from various COI, of which I note were mainly dated between 2014 and 2015, that the situation in CAR was improving with the government making attempts to bring the people together for reconciliation and development, that it was rebuilding into a society which had and attempted to establish the rule of law, that the two opposing factions had laid down their arms with efforts made to improve all factions including the war lords and different religions belief, and that the country was back to rule by civilians after the new president took office on 30 March 2016 [30] – [32], and concluded that it would therefore be safe for the Applicant to return to CAR as follows:

“34. All the above-mentioned COI showed that CAR is on the road to recovery. Children of different religion were happy to work together, the rule of law has been re-established. The country has established the Special Criminal Court for judging the perpetrators of the most serious crimes in CAR since 2003. With the presidential election in 2016, CAR is now back to rule by civilians. The losers in the presidential election had accepted defeat for the sake of peace had congratulated his rival.

35. The CAR now is in a much better situation when compared to that of Somalia in the case of Sufi and Elmi. Notwithstanding the COI cited by the Petitioner, according to Horvath, it is not required for the state to provide protection that would eliminate all risk and amount to guarantee of protection.

36. By the reasons aforesaid, it is safe for the Petitioner to return to CAR.  This Petition is therefore dismissed.”  

31.  While the Adjudicator clearly had before him the Applicant’s Additional Submissions with the attached latest COI reports on CAR, he did not seem to have referred to any of them in his consideration of COI in the Decision, but which Mr Wong argues were relevant and critical to the Applicant’s claimed fear of ill-treatment from the Seleka rebels upon his return to CAR and which do not support the Adjudicator’s findings as to the situation in CAR, and for which the Adjudicator failed to explain why they were not relied on in his determination.    

32.  In his Additional Submissions dated 8 June 2017 [B/10/54], the Applicant essentially argued that there were continuing conflicts between Seleka and Anti-Balaka and other instances of violence, and hence deteriorating situation in CAR since the ceasefire agreement, as evidenced by the attached latest COI from late 2016 up to June 2017, just one month before the Board’s decision of 7 July 2017, including the following reports:

(i)  UN News reported that in September and October 2016 “clashes broke out on 16 September between anti-Balaka and ex-Seleka groups in Ndomete and Kaga Bandoro, leaving at least six civilians dead and many, including an aid worker injured”;

(ii)  An article of UNHCR dated 12 October 2016 reported that “fighting in the past month between ex-Seleka militiamen and anti-Balaka fighters has affected western eastern and central parts of the country and capital Bangui, according to the UN peacekeeping mission (MINUSCA) … It said at least 11 people were killed and 22 wounded in clashes that followed the murder of an army officer on October 4.  Fourteen people were reported to be still missing”;

(iii)  The same article stated that these attacks against civilians “severely hamper the provision of urgently needed humanitarian assistance to populations in need … Armed group activities engender insecurity and provoke population movements.  Displaced people are perpetually in urgent need of food, basic household items, medicine and access to education”;

(iv)  The article also pointed out that “the growing insecurity is causing many organizations to leave or reduce their presence.  Two UNHCR partners have cut their staff or suspended monitoring activities in the west of the country … In Bocaranga, four humanitarian organizations have closed their bases or suspended their activities and two others have evacuated their staff, to Paoua in Ouham-Pende prefecture, or to Bangui.  One of UNHCR’s partners has reduced its staff on the ground for security reasons”;

(v)  The Human Rights Watch dated 1 November 2016 reported that “Seleka rebels killed at least 37 civilians, wounded 57, and forced thousands to flee when they razed a camp for displaced people in the Central African Republic on October 12, 2016.  United Nations peacekeepers deployed outside the camp in the town of Kaga-Bandoro failed to halt the attack”;

(vi)  On 2 November 2016, UN Deputy Secretary-General remarked that “the month of October has been particularly violent, resulting in the tragic deaths of many people, which many injured, including in the capital Bangui, as well as Bambari or Kaga Bandoro”, and also highlighted demonstrations against the government and the UN that were accompanied by violence on 24 October 2016;

(vii)  The Human Rights Watch reported on 5 December 2016 that “serious fighting in the Central African Republic in late November 2016 between two Seleka groups left at least civilians dead and 76 wounded … Armed groups appear to have deliberately targeted five of the civilians killed during the main clashed in the central town of Bria between November 21 and 23, and nine others in the ensuing days. Three other civilians are missing and presumed dead”, and that “The UN has 12,870 peacekeepers deployed across the country, including 246 armed forces who were in Bria at the time of fighting, but they were unable to protect civilians in the heavy fighting.  The UN sent additional peacekeepers to the town after the clashes.  National security forces, such as police and gendarmes, were not capable of stopping the fighting and sought protection from the UN”;

(viii)  Reuters reported that in May 2017 there had been another surge of escalated violence resulting in 20 - 30 civilians being killed in attacks throughout a weekend in the town of Bangassou involving heavy weaponry, and that “in recent months, roaming militias spurred by ethnic and religious rivalries have stepped up violence despite pledges to take part in a government-led disarmament program.  Aid workers say that militias seem to be exploiting security voids after Ugandan and French soldiers left in the past few months when their missions ended”;

(ix)  The UN reported on 26 May 2017 of some most disturbing incidents including one in the week prior that an entire city’s population of more than 41,000 people was forcefully displaced due to “unprecedented violence between rival armed groups”, “with the emergence of an ethnic dimension to the conflict, hundreds of houses were burned, property looted and ransacked”,and that UN Humanitarian Coordinator in the country expressed concern at “this new outbreak of violence where civilian people are paying the highest cost”;

(x)  The UN News Centre reported on 30 May 2017 that “regional instability and internal conflicts in neighbouring countries have fueled the volatile conditions in the country, particularly through the flow of arms and rebel groups across its porous borders”,and that “as of May 2017, there were more than 500,000 internally displaced persons nationwide, a figure that had not been reached since August 2014”;

(xi)  On 1 June 2017 the UN News Centre reported that the Humanitarian Coordinator and Resident Coordinator in the country said that “the frequency and brutality of attacks in Bangassou, Bria, Alindao and other localities have reached levels not seen since August 2014 … in the past two weeks the signs are very clear, violence in the Central African Republic has entered a new spiral of escalating conflict and the situation is quickly deteriorating … humanitarian actors are facing logistical and security challenges to reach the people in need, as well as funding shortages”.

33.  On the basis of these latest reports, the Applicant argued in the Additional Submissions that the situation in CAR had deteriorated rapidly in the past several months and violence had surged, causing deaths and grave injuries to many civilians, and that the peacekeeping forces were unable to protect the civilians due to the severity of the violence that even national forces had to resort to protection by the UN that there were sufficient evidence from the latest COI to corroborate his claim that the level of future risk in particularly to potential loss of life had reached the requisite level for his non-refoulement claim for protection to be successful. 

34.  Mr Wong therefore submits for the Applicant that the Adjudicator had failed to show in his reasoning in the decision how he considered and met those arguments based on the latest COI reports, in particularly in the context of the requirement for high standards of fairness and that he did not hear oral arguments on those additional materials, and why they were not relevant or persuasive, and that the Learned Judge should therefore have granted leave for judicial review of that decision.

35.  In the Decision, Judge Lam noted no reason to doubt that the Adjudicator had not considered the Applicant’s Further Submissions, which he agreed were different views of CAR’s stability, that the Adjudicator was bound to make a judgment after studying the relevant COI, but that he needed not state the mental process of his judgment or recite all the COI he had considered, that he had mentioned the information he considered reliable but not those he attached less or no weight does not mean that he had neglected any relevant information or cheery-picked information [43].

36.  The Learned Judge also did not agree with the Applicant’s complaint that the 2014-2016 COI about CAR as outdated and inconsistent with the latest development, as he stated in the Decision as follows:

“44. The Applicant complained the 2014-2016 information about CAR was outdated and inconsistent with the 2017 information which he had submitted to the Director. I cannot agree. The more recent information only showed the situation in CAR was not settled completely rather than saying the country was an anarchy or a lawless state. It was apparent from the Adjudicator’s report that he was aware of the imperfection there. However, he was right to say reasonable state protection did not mean risk-free life or guaranteed safety.

45. The Applicant said civilians were attacked in CAR but his own COI also stated that additional forces were being deployed by the government to neutralize attackers, protect civilians and facilitate critical humanitarian support to the population.  There was problem in the country but the government was tackling.  It was not Wednesbury unreasonable for the Adjudicator to find reasonable state protection was available in CAR.” 

37.  Whilst I agree that the Adjudicator may not need to recite all the COI that he had considered, or to explain why he had attached less or no weight to each and every one of the information before him, but given the nature of the Applicant’s claim that he had been specifically targeted by the Seleka rebels, and in the absence of any adverse finding on his credibility, I do not, with respect, agree that it was not necessary for the Adjudicator to explain why with the latest COI showing apparently a different and worse situation in CAR in 2017 as evidenced in [32] above than it was in 2015 that he would conclude that the country was on the road to recovery and was in a much better situation that it would be safe for the Applicant to return.

38.  The fact that none of those unfavourable reports attached to and mentioned in the Applicant’s Additional Submissions have been referred to by the Adjudicator or caused him to qualify his findings in respect of the situation in CAR has made it difficult, if not impossible, to understand how he was able to arrive at such a positive conclusion that CAR was on the road to recovery, or that it was rebuilding into a society which had established the rule of law.

39.  It is a fundamental principle that in these cases, the reasons given by the decision-maker must adequately meet the substance of the arguments advanced, and must tell the claimant in broad terms the basis and reasons of the decision, as Hon McWalters J (as he then was) stated in AM v Director of Immigration (2014) 19 HKPLR 89, at §107:

“ … any set of reasons which purports to make findings relevant to a conclusion on a core part of a claimant’s claim, and here that was the issue of State acquiescence, would have to address comments of the kind found in these reports so that a claimant could understand why, notwithstanding the existence of such comments, his claim ultimately failed. Thus, the issue is not just one of Wednesbury unreasonableness but also one of adequacy of reasons provided by the decision-maker.”

40.  In the premises, and for the reasons given, plus the fact that the Applicant was only 6 days late with his application, I am satisfied that there is reasonable prospect of success with his intended appeal, and accordingly grant leave for him to file his appeal out of time.