MD v. LAM WILLIAM ESQ AND ANOTHER

HCAL 2412/2018

[2021] HKCFI 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2412 of 2018

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 counsel for the Applicant in open court;

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 19 May 2005 using a Ghanaian passport of another person and was given permission to remain as a visitor up to 2 June 2005 when he did not depart and instead overstayed until 13 August 2007 when he surrendered to the Immigration Department and raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the local King of his home village and the King’s guards who were considered as affiliated with or as part of the Nigerian government and authorities. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Zion Community, Ilaje of the Tade Area, Okitipupa Local Government, Ondo State, Nigeria. After leaving school he went to Lagos to play professional soccer, and would return to his home village to visit his parents from time to time or during holidays.

3.  His home village was together with several neighbouring villages ruled by a head chief known as the King assisted by other chiefs from each village to run the daily management of the villages and to handle villagers’ disputes. The King also reported to the Nigerian government and to implement government policies in those villages under his control. The Applicant’s father was one of the elected chiefs in his home village.

4.  In 2004 the Applicant’s father discovered that the King had expropriated government funds intended for the villagers for his own benefits, and on one occasion in the absence of the King disclosed the matter to the other chiefs during a meeting. When the King afterwards learnt about the matter he became furious at the Applicant’s father, and after a confrontation between them, their relationship turned sour.

5.  One day in February 2005 while the Applicant was back to his home village on holiday, he and his parents and elder brother were brought by the Kings’ guards to the King’s palace where the Applicant and his brother were separated from their parents and were detained in a small house in the bush for the next several days, during which they were beaten, tortured and sexually abused, and as a result the Applicant sustained bruises and cuts all over his body, his left shoulder was dislocated, and his vision became impaired.

6.  On the third day of their detention, Soji, a friend of the Applicant’s father who was also one of the King’s guards, came to see the Applicant and told him that his parents had been killed by the King who intended also to kill him and his brother, but Soji decided to help them to escape from their detention and to flee to Lagos, and from there with the assistance of their agent they separately departed Nigeria for Ghana where they obtained their Ghanaian passport, and with which his brother departed for Hong Kong first, followed later by the Applicant on 19 May 2005.

7.  Upon arriving in Hong Kong as a visitor, the Applicant was picked up by his agent at the airport who then took away his Ghanaian passport and brought him to meet up with his brother, and assisted them to make their refugee application to the UNHCR office in Hong Kong where they subsequently overstayed, and after their refugee applications were rejected, his brother left Hong Kong to return to Nigeria, while the Applicant remained and raised his torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 15 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

8.  By a Notice of Decision dated 7 July 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“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 (“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”).

9.  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 King and his guards upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that his brother upon his return to Nigeria had been harmed by the King or his men, that reliable and objective Country of Origin Information (“COI”) show that Nigeria is a country with law and order that it is not accepted that the Applicant would not be protected by the authorities from harm from the King or his men, and that reasonable internal relocation alternatives are available in Nigeria with a large population of 177 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for the King or his men to locate him.

10.  By a Notice of Further Decision dated 6 July 2017 the Director again rejected the Applicant’s claim upon considering additional facts and submissions from his Duty Lawyer relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 20 July 2015, and for which he attended an oral hearing on 9 July 2018 with his Duty Lawyer before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made by his Duty Lawyer on his behalf. On 21 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found a lack of credibility in the Applicant’s claim in view of his conduct including using a faked Ghanaian passport with a false name to enter Hong Kong that he was considered dishonest and unreliable, that his case was about private hatred as the King was only a ruler in a local village and not a state agent or actor or represented the Nigerian government, that in the absence of any evidence of any hostile acts instigated or authorized by the Nigerian government against the Applicant that he had failed to establish the legal elements for torture risk, that he has not suffered severe injury or serious harm that would place him within criteria of the applicable claims, and that in any event it is safe for him to live in Nigeria at least other than in his home village without any risk of being located by the King or his men that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

13.  On 31 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following amended grounds for his intended challenge:

(1)  That the Adjudicator erred in law in his approach in the standard of proof and as to the nature and quality/quantity of the evidence required to meet the applicable standard;

(2)  That the Adjudicator wrongfully ignored or failed to take account or properly consider the facts of the Applicant’s case, his lawyer’s submissions and the relevant COI relied on by him and were made available before the Board;

(3)  Procedural unfairness/irrationality in the Adjudicator’s assessment of the Applicant’s credibility which is replete with errors of law and analysis;

(4)  Procedural unfairness/irrationality in that the Adjudicator failed to properly consider the relevant COI provided by the Applicant, made unfair and unfounded criticisms regarding the volume of the COI, and/or acted irrationally by dismissing those COI as too voluminous;

(5)  Apparent bias in the Adjudicator’s highly prejudicial comments against the Applicant and his Duty Lawyer which would lead a reasonable fair minded and well-informed observer to conclude that there is a real possibility that the Adjudicator was bias against the Applicant;

(6)  Erroneous findings on State Nexus and Protection and Internal Relocation;

(7)  Excessive severity threshold adopted by the Adjudicator in his assessment of the ill-treatment suffered by the Applicant.

14.  Mr Abraham Chan SC with Mr Timothy Parker appeared for the Applicant in his leave application on pro bono basis with skeleton submissions for his proposed grounds, of which Grounds (1) and (3) relate to the Board’s assessment of his credibility and which I propose to consider together, whereas Grounds (2) and (4) concern the way and manner in which the Adjudicator treated the facts, submissions and COI presented by the Applicant and can also be considered together.

Grounds (1) & (3) – Incorrect Standard of Proof/Flawed Credibility Assessment

15.  In the Board’s decision before he started the consideration of the Applicant’s claim, the Adjudicator first set out his approach to credibility assessment at §6:

“A claimant has the burden of proof to establish all the above legal elements. It is not sufficient if the “evidence” contains of bare assertions, as he has a duty to gather information as much as the host country. He must establish substantial grounds showing a foreseeable, real, and personal risk. General statements without personal encounter do not help: Gallolu Kankanamalage Nimal Perera v Director of Immigration Petition Team CACV 215/2012.”

16.  The Adjudicator then proceeded to find the Applicant’s appeal to have failed on “a lack of credibility” when he stated:

“30. For obvious reasons the appeal has failed independently of a lack of credibility. However for the sake of completeness I should address this issue. Certain aspect against credibility are enacted in Section 37ZD of the Immigration Ordinance Cap 115 (“the Ordinance”), for example Section 37ZD(3) in relation to conduct, and one should pay attention to same.

31. The Appellant used a fake Ghanaian passport with a false name and false nationality when departing Ghana and to enter Hong Kong, which shows dishonesty: Section 37ZD(3). Furthermore, his thesis is that his father F, not the Appellant himself, had exposed the King’s misconduct, yet the King and bodyguards would beat him (the Appellant), which is illogical and in defiance of common sense.

32. The above concerns are significant regarding conduct and reliability. They were asked of the Appellant during the oral hearing, and his response was: (1) Regarding the fake passport, he evaded the question as to whether he knew, at the time he was using it, that it was fake because “I did not think it was false”: this simply cannot be an honest answer; (2) he repeatedly said “I have my photograph taken, I received the passport a short time before departing Ghana”, but fell short of saying he knew its falsity, (3) when asked whether he had read the name and nationality he said he did, and (4) he was asked, that being the case, did he realise he was using a false passport, and he still maintained that “the passport was real”: I find his evasiveness and his answers plainly show dishonesty. The passport was of course “a real one physically”, but whether he knew it was fake is a different question.

33. After studying the whole case and after listening to the Appellant at the oral hearing, I find him dishonest and unreliable. Why he left Nigeria, why in the absence of serious ill-treatment or serious harm when an obvious, cheaper, and easier way to avoid the King was to simply move elsewhere in Nigeria, yet he would travel 12,000 km to such a far-away place in Hong Kong, and for whatever true purpose he decided to come to Hong Kong, the answers to all these matters he himself would naturally know, but as the burden of proof is on a claimant, he who is unreliable fails his claim, irrespective of the fact that all the alleged misfortunes, even if existed, fail to establish any substantial risk under Torture or BOR3 or BOR2 or Persecution.”

17.  It is the Applicant’s complain that such approach of the Adjudicator to credibility assessment on the premise that a non-refoulement claim cannot be substantiated where it is based mainly on the claimant’s own account of events and that corroborating evidence is required is incorrect, as nothing in the Court of Appeal authority cited by the Adjudicator in the Gallolu case requires a claimant to produce corroborating evidence, as well-established authorities recognize that it will often be unrealistic to expect such evidence to be produced, and that instead of giving the Applicant the benefit of the doubt in respect of his consistent and apparently credible account of those critical events of his claim, the Adjudicator found them categorically unestablished as bare assertion because they came from himself and wholly ignored other critical evidence set out in his claim.   

18.  Mr Chan submits for the Applicant that the Adjudicator wrongly treated such adverse credibility finding as an automatic ground for rejecting the claim as far too simplistic an approach and is wholly problematic on the premises that any use of a false travel document makes one dishonest in all material respects, and that nothing one says is to be believed which are both logical fallacies, as the UNHCR guidelines on credibility assessment point out that travelling on a false travel document may be entirely consistent with a protection claim rather than evidence that the claimant is a dishonest person who must therefore be lying about their need for protection, and that some refugees will not be able to obtain a genuine travel document previously because attempting to obtain one from their national authorities would place them at risk.

19.  Mr Chan further submits that the Adjudicator’s finding that the treatment suffered by the Applicant in Nigeria did not meet the requisite level of severity belies a fundamental misapprehension about where the threshold lies, as the physical and sexual abuse suffered by the Applicant and his brother in his account clearly crosses the threshold for torture, CIDTP and/or persecution, and hence the Adjudicator’s assessment of the Applicant’s credibility must be flawed and quashed.  

20.  In the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued February 2019, which provides guidance for conducting refugee status determination, and where it deals with the principles and methods in establishing the facts of the individual case, it stated at §196:

“It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

21.  These principles have been affirmed by the Court of Final Appeal in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at §21, which proceeded to state that all relevant matters of the applicant’s claim should be considered, and with high standards of fairness to be complied when considering individual cases:

“52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

 (1)  The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violation of human rights in that country? Has the situation changed?

 (2)  Has the potential deportee been tortured in the past and how recently?

 (3)  Is there medical or other independent evidence to support the claim of past torture?

 (4)  Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

 (5)  Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

 …

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention, And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned…

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”

22.  Given the finding of the Adjudicator in the decision as noted above, while he may be entitled under section 37ZD of the Ordinance to take into account the Applicant’s use of a fake Ghanaian passport to enter Hong Kong as a behavior which may damage or undermine his credibility, I agree with Mr Chan that it is reasonably arguable that the Adjudicator had wrongly treated such adverse credibility finding as the main or automatic ground for rejecting the Applicant’s claim without taking proper consideration or at all the other relevant material facts and evidence presented before the Board.   

23.  One of such relevant materials is the Applicant’s detailed account of how he and his brother were tortured by the King’s guards in his SCF and recorded in the Director’s decision ([7.14] – [7.16]), but of which the Adjudicator described in §9 of the decision that the Applicant “has not suffered severe pain and physical or mental suffering reaching the minimum level of severity on the duration of the treatment, its physical or mental; effects”. As such it also seems to me reasonably arguable that the Adjudicator’s finding that the treatment suffered by the Applicant in Nigeria did not meet the requisite level of severity belies a fundamental misapprehension about where the threshold lies.  

24.  Similarly, while the Adjudicator was also entitled to raise those matters as noted above in §33 of the decision in his assessment of the credibility of the claim, in which he questioned the Applicant’s true purpose of coming to Hong Kong, he never drew those issues to the attention of either the Applicant or his lawyer during the appeal hearing but only afterwards in the decision indicated that such matters required clarification or explanation from the Applicant. As such it seems to me that high standards of fairness require the Adjudicator to have done so during appeal hearing, and if it had then not occurred to him to be so until after the hearing, high standards of fairness also require that he should hold a further hearing or at least invite the Applicant to address those matters in writing thereafter. The Adjudicator did not appear to have done either.

25.  For the reasons given, I agree that it is reasonably arguable that the Adjudicator erred both in law and in fact in his assessment of the credibility of the Applicant’s claim.

Grounds (2) & (4): Ignoring Relevant Consideration of Facts, Submissions and COI     

26.  In these grounds the Applicant complains that the Adjudicator had either ignored or materially misstated a number of critical matters of facts and evidence of his claim including:

(a) dismissing his account of his parents’ murder because he had not seen the event himself and therefore failed to take this highly material fact into account when assessing the risk to the Applicant;

(b) failing to recognize the fact that the Applicant (and his brother) did lodge a refugee claim to UNHCR within a week of his arrival in Hong Kong when the Adjudicator remarked in the decision that the Applicant only raised a protection claim after some two years in Hong Kong thereby undermining his bona fides;

(c) ignoring the fact that the Applicant did seek medical treatment after arriving in Hong Kong as recorded in the Director’s decision when underestimating the severity of the ill-treatment that he claimed to have suffered at the hands of the King’s guards with statements such as “However he did not need to see a doctor” and “He has not suffered ‘severe pain and physical or mental suffering reaching the minimum level of severity” when assessing his claim;

(d) making adverse credibility findings against the Applicant as to his claimed ill-treatment without referring to the fact that the Director had accepted the Applicant’s claimed injuries and physical conditions and did not find it necessary to arrange for medical examination;

(e) ignoring the grounds of appeal set out in the Applicant’s notice of appeal, or the submissions of his lawyer at the appeal, or the relevant COI made available to the Board for his appeal when none of which were referred to or discussed or analyzed by the Adjudicator in the decision.     

27.  In §15 of the decision where the Adjudicator considered the relevant COI, it seems to me that he only focused on those of his own which he had provided to the parties at the appeal hearing, but of those relied on by the Applicant and provided by his Duty Lawyer in the hearing bundle, the Adjudicator only referred to them in the Addendum to the Board’s decision in what appears to be primarily criticisms of the Applicant’s Duty Lawyer as follows:

“35. The Duty Lawyer has written lengthy “Grounds of Appeal” against the Director consisting of 16.5 pages and 56 paragraphs when none of them was relevant because the TCAB must consider the case from afresh, and not to say whether or where the Director may or may not have erred in his findings. The Grounds of Appeal are irrelevant and are a waste of resources. The Duty Lawyer either did not know, or chose to turn a blind eye to, this fact when writing up such lengthy and irrelevant material. For what other reason than to boost the thickness of her papers I do not speculate, but such practice must stop.

36. In addition, the Country of Origin Information consisted of a huge volume (906 pages). The impressions given to the Adjudicator are (1) the Duty Lawyer has tried to dig up as many as possible instead of selecting the most helpful ones, and (2) saying to the Adjudicator “Here are all the articles, sort them out yourself, I have made the Hearing Bundle as thick as I can and made it look impressive”. This practice breaches the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board (Fifth Edition: 12 September 2016) at paragraph 9.7(f), and the Duty Lawyer is either ignorant of same or has turned a blind eye. For what reason other than to make the appears as thick as possible I do not speculate, but huge volumes of COI does not help the Adjudicator. Appellant courts have criticized such practice for obvious reasons. It seems that the Duty Lawyer Service has not informed their Duty Lawyers of this problem of wasting resources.”   

28.  Whether or not these criticisms of the Duty Lawyer were justified, of which no doubt I shall examine much more closely when I come to consider the next proposed ground of the Applicant, but it appears to me that the Adjudicator did not even refer to any of the grounds of appeal set out in the Applicant’s Notice of Appeal in the Board’s decision, nor did he as to those COI relied upon by the Applicant for his appeal, and without having done so, how could he be certain that they would not be relevant to the Applicant’s claim, or if he did, he had not properly identified them or explained why he did not find them relevant or applicable, thus failing to carry out what the Court of Final Appeal in Prabakar above have stated that all relevant matters of an applicant’s claim should be considered.

29.  It is also important to note that a claimant has the duty to present and substantiate his claim and to assist both the Director and the Board to process it, as pointed out by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526 at para 23 when Cheung HCCJ (as he then was) stated:

“Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

30.  This seems to be what the Applicant and his Duty Lawyer had done by presenting his claim in his Grounds of Appeal, his COI and his Skeleton Submissions presented before the Board, and while the Adjudicator in this second-tier screening process of the Applicant’s claim would not be acting in an appellate role, but as pointed out by him in the Addendum that it involved a rehearing of the matters determined by the Director, as characterized by the Court of Appeal in Kaur v Director of Immigration [2001] 1 HKC 666 as involving the consideration afresh of the original decision, and for which McWalters J (as he then was) in AM v Director of Immigration & Anor [2014] 1 HKC 416, considered the role of an adjudicator at para 23:

“This brings me to a consideration of the second tier and the role of the Adjudicator. The 1st respondent has exhibited a number of documents explaining the enhanced screening process. There are three particularly important documents amongst those exhibited. They are the ‘Guidelines for Handling Claims Made under art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (the Guidelines), which is relevant to the work of the Assessors, the ‘Brief Notes for Adjudicators (Torture Petitions) on Handling Petitions Lodged by Unsuccessful Torture Claimants under art 48(13) of the Basic law’ (the Brief Notes) and the ‘Practice Direction for Adjudicators (Torture Petitions)’ (the Practice Direction). The Guidelines provide general background information on the Convention and of the high standard of fairness required of Assessors and Adjudicators and explain how the Adjudicator may determine a petition without an oral hearing. In this respect the Brief Notes provides as follows:

‘The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with where the Adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the Adjudicator will take into account the circumstances of the case, including but not limited to considerations that all relevant evidence has been presented and the determination of facts shall be based on clear and cogent reasons.”     

31.  Furthermore, in the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”) issued by the Chairperson of the Board, of which I shall go into further details when I come to consider Ground (5) of the Applicant, section 11.5 requires an adjudicator to bear in mind the following matters in the determination of the claim:

“The Adjudicator would consider all relevant matters … and should bear in mind –

(a) The interest at stake and the potential consequence of the Decision:

(i) What is involved is the fundamental human right of the claimant to be free from torture. That is an absolute human right, which admits of no exception. One is concerned with a fundamental right to be free from torture. The potential consequence of the Decision is grave. Where life and limbs are potentially at risk, the high standards of fairness is required in the first place …

(ii) Depending on the facts, it may be appropriate for the Adjudicator to draw the petitioner’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the petitioner …

(b) The high standards of fairness would require the petitioner to be given an opportunity to be heard either orally or in writing where the Adjudicator considered there is anything in the petitioner’s evidence or submission which is material to the determination of the petition …”

32.  In section 12 of the Petition Guide where it sets out the matters to be attended to by the petitioner or his legal representative before a hearing, amongst which are arguments/submissions to be prepared and be directed at the live issues in the petitioner’s case [12.3], which are to be provided together with all the documents including COI relied upon by the petitioner in the hearing bundle to be placed before the Board for the appeal/petition hearing [12.7], whereupon the adjudicator is required under section 21 to have regard to the individual circumstances of each case and to take into account all relevant considerations including relevant country information, and whether there is any region within the Risk State in which the petitioner would not be subjected to a risk under any of the applicable grounds [21.1].   

33.  Given all these guidelines and duties imposed on all parties concerned, it seems to me that in the Board’s determination of the Applicant’s claim in the present case, the Adjudicator did not appear to have properly taken into consideration of the grounds of appeal set out in the Applicant’s Notice of Appeal, or the skeleton submissions and COI relied upon by the Applicant in the hearing bundle for his appeal. As such and for all the reasons given above, I am of the view that these grounds are also reasonably arguable for the Applicant’s intended challenge.

Ground (5) – Apparent Bias

34.  Following on the Adjudicator’s comments in the Addendum against the Duty Lawyer as stated above, the Applicant complains that such comments would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the Adjudicator would be biased, including imputations that the Duty Lawyer had acted with an ulterior motive in lodging voluminous materials, that she might have chosen to turn a blind eye to the Board’s Practice Directions, that it was suggested that she had done so to make the bundle look impressive, attributing to her having some improper motive which if true would amount to totally unprofessional conduct by a solicitor, and with what appears to be an intention to have the DLS treat it as a complaint against the Duty Lawyer, of which the Applicant submits go beyond the proper remit of judicial or quasi-judicial comment which would cause any fair-minded observer to conclude that there was a real risk that the Adjudicator was biased.  

35.  While an Adjudicator who has the conduct of proceedings for the Board is certainly entitled, and is in fact obligated, to raise issues with a claimant or his lawyer over any misconduct or behavior which tend to waste time and resources, if there are indeed justifications to do so, in my view they should be raised there and then at the hearing to afford that party an opportunity to answer any criticisms. It is in fact only fair and proper to do so, and be seen to have done so.     

36.  As noted above, the Adjudicator’s criticisms can be summarized as follows:

(i) that the Duty Lawyer unnecessarily written lengthy grounds of appeal against the Director’s decision in the Applicant’s Notice of Appeal which were irrelevant and a waste of resources because the Board was to consider the case on a de novo basis  

(ii) that the Duty Lawyer provided voluminous COI to look impressive but were unhelpful and also a waste of resources.

37.  Before looking into whether there is any justification in these criticisms, it would be relevant to first refer to the statutory requirements regarding the notice of appeal as set out in section 37ZS(2) of the Ordinance which provides that:

“A notice of appeal must be -

(a) in a form specified by the Chairperson of the Appeal Board; and

(b) accompanied by a copy of the notice of the decision being appealed against.”

38.  Amongst the instructions to petitioners/appellants on the front page of the Notice of Appeal Form issued by the Board (HB 20/228), of which I note that the Adjudicator in the present case was a Deputy Chairperson, it is stated as follows:

“It is important that you include ALL information you wish the Board/Adjudicator to consider in this Notice as you may not be allowed to submit further information subsequently unless with the permission of the Board/Adjudicator.”

39.  In the Notice of Appeal at Section 2: Appeal/Petition, it is also stated at (B) Grounds of Appeal/Petition (HB 20/231):

“You must set out ALL grounds of your appeal/petition. Please give reasons in support of these grounds – that is, why you disagree with the decision of the immigration officer being appealed/petitioned against. Where appropriate, please refer to the specific paragraphs of the immigration officer’s written decision and/or country of origin information materials relied upon. Give as many details as possible. Use additional sheets of paper if necessary.”

40.  The needs to comply with these directives can also be seen from the Practice Guide referred to above and which sets out the rules and guidelines to be followed by the adjudicators handling appeals/petitions, the appellants/petitioners, the immigration officers, legal representatives of the parties involved, as well as the staff of the Petition Office as to how the appeals/petitions are to be processed and determined under the Petition Scheme, the purpose of which is clearly stated in the introduction to the Petition Guide at 1.2:

“The Petition Scheme is operated to review the decisions made by the immigration officers on non-refoulement claims in relation to all applicable grounds …”

41.  As for the duties of the petitioners/appellants in making their petitions or appeals, it is provided in paragraph 8.4 as follows:

“8.4 For the purpose of making a non-refoulement claim under this Petition Scheme, the burden of proof is on the petitioner to establish that he shall be afforded non-refoulement protection on any applicable grounds, were he to be expelled, returned or surrendered to the Risk State. It is the duty of the petitioner to substantiate his non-refoulement claim, and to this end, he must, upon filing of his petition, provide to the Adjudicator all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any documents supporting the facts. He is also required to comply with the requirements, procedures and conditions (including any time limits) prescribed by this Petition Guide or required or specified by the Adjudicator. [cf. s37ZA(1)]”

42.  Paragraph 8.5 then sets out the consequences of such non-compliances:

“In considering a non-refoulement claim, the Adjudicator may take into account the petitioner’s behavior referred to in paragraph 17 below as damaging his credibility. This also applies to the petitioner’s behavior during the first-tier screening. Petitioners should note that a failure, without reasonable excuse, to put forth the grounds in support of a petition (including any supporting documents) in the Notice of Appeal/Petition when filing a petition, or a failure, without reasonable excuse, to comply with any requirements, procedures and conditions (including any time limits) prescribed by this Petition Guide, or required or specified by the Adjudicator, may be taken as a behavior damaging the petitioner’s credibility. Notwithstanding that, being a petitioner with credibility damaged does not necessarily imply that the petition will be rejected upon finding of these behaviours.”

43.  The Petition Guide as noted above also sets out in paragraph 21 the duties of the Adjudicator in determining whether a non-refoulement claim is substantiated, which is based on section 37ZI(5) of the Ordinance, and in particularly at 21.1 where it is stated:

“In determining whether a claim is substantiated and hence non-refouleemnt protection is to be granted to the petitioner, the Adjudicator must, having regard to the individual circumstances of each case, take into account all relevant considerations, including relevant country information and whether there is any region within the Risk State(s) in which the petitioner would not be subjected to a risk under any applicable grounds (other than torture risk). [cf. s. 37ZI(5)]”

44.  The key word here is “relevant”, as those materials that are unnecessary, repetitive, outdated or have no relevancy to the case must not be placed before the Board, as it would otherwise be an unnecessary waste of time and resources, as warned by the Petition Guide in paragraph 12.8, while for the provision of COI, which has been defined as any information that should help to answer questions about the situation in the country of nationality or former habitual residence of a person seeking asylum or non-refoulement protection, parties must ensure that only the part or parts that is relevant to their case is placed in the hearing bundle.     

45.  As I have noted above, while an adjudicator is certainly entitled to criticize a party for any breach or non-compliance of these guidelines or practices, it is only appropriate that such issue be raised at the hearing so that the party and/or his lawyer may properly address them and/or explain to the adjudicator, and if the adjudicator sees fit to further discuss such issue in the Board’s decision for whatever reason including making formal complaints to the DLS as it appears to be the case here, the adjudicator should properly and accurately identify such breach or non-compliance as part of the fact finding process and given that professional reputation of the lawyer involved may be at stake. Fairness to all parties requires as much.

46.  Given what appears to me just a very broad brush approach taken by the Adjudicator in the present case, and the fact as I understand from those representing the Applicant that the Adjudicator never raised any such issues with the Applicant or his lawyer over his grounds of appeal or his submissions or COI at any time during the appeal hearing, it is in my view reasonably arguable that those comments made by the Adjudicator in the Addendum of the Board’s decision may indeed lead one to conclude that the Adjudicator was biased against the Applicant and/or his Duty Lawyer.   

Ground (6) – Erroneous Findings on State Nexus and Protection, Internal Relocation

47.  Here the Applicant challenges the findings of the Adjudicator that (i) the King is not a State actor; (ii) that State protection is available; (iii) that internal relocation is a viable option, and that the decision on these parts of the claim is erroneous in law, ignores relevant considerations, is Wednesbury unreasonable, and/or fail to state any or sufficient reasons for the findings reached.

48.  The Adjudicator’s findings on such issues in the decision, starting with that of State agent, are as follows:

“Legal “Element 4”: the “State agent”

7. The case is about private hatred. Duty Lawyer for the Appellant has written numerous times about the term “State actor”, but the “King” is only a ruler in a local village. He was not, nor is he, like “The King of England” as to England or the United Kingdom as a country. Here the “King” is not a State agent/actor, nor has he spoken for or represented the national Nigerian Government, less still was he or will he be acting on behalf of the national Government when assaulting the Appellant (if assault had actually happened). There is no evidence of any hostile act as having been instigated or authorised by the national Nigerian Government. None of the alleged hostile acts was reported to the police. There is no evidence of “official acquiescence”. Nor is there any evidence of “passive acquiescence”: MI CACV 69/2014, FAR HCAL 76/2015 §36 to 38.

8. The stated facts do not show harm or threat of harm as instigated by anyone quo the capacity of the Nigerian Government…”    

49.  As for the option of internal relocation, the Adjudicator stated:

“13. If a claimant can avoid Torture and/or CIDTP and/or Persecution by living in one or more places other than where he says he would be subjected to such treatment, he will not succeed in applying for non-refoulement: Balvir Kaur India CG [2002] UKIAT 03387, and AA (Uganda) [2008] EWCA Civ 579.

14. I note the Immigration Officer’s Notice of Decision in the section entitled “How likely it is that your feared treatment would materialize” where he has explained in details why the Appellant is safe in Nigeria.

…

17. I do not accept that the King of 13 years ago is interested in locating, or is willing to expend huge manpower and resources to locate, all over Nigeria for a needle in a haystack. There is no substantial basis of fear. There are many places in Nigeria, at least other than the Appellant’s home village, where as a 37-year-old and able-bodied young man he can safely live without undue hardship, which is another independent reason for the appeal to fail,”

50.  As such, Mr Chan submits that the Adjudicator had failed to engage meaningfully with the Applicant’s submissions on these issues or the supporting COI relied upon by the Applicant in the hearing bundle or in his skeleton submissions or in his grounds of appeal, such as the King’s nexus to the State, of which Mr Chan submits that the Adjudicator failed to address inter alia the following aspects of the COI and evidence:

(a) The European Asylum Support Office’s Country of Origin Information Report: Nigeria – Country Focus, June 2017, produced as COI by the Director in his decision which states:

“7.5 Traditional rulers and chieftaincy titles

 … Since s local government reform in 1976, institutions of chieftaincy and traditional rulers have been part of the formal administrative structure on a local level. Therefore, these offices exercise formal power in addition to legitimacy drawn from a country’s tradition.”  

(b) A news article produced amongst the COI showing that the King had been, or was expected to be, appointed Chairman of the Ondo State Traditional Council (i.e. which appears on its face to be an official State position).

(c) The Applicant’s evidence in his screening interview (A12 & A13) that:

“A12. The King served as the head of the community; he would be the highest consultant of the village law and policies. If the Government wants to pass a message to the village public, the King would be the person to relate the message. The King was a channel of communication between the government and the village people. Apart from that, the King would also make decision on the daily activities of the village people, especially when the people break the law, the King would make his decision about the judgment.

…

 A13. The King belonged to part of the government body in which he would participate in the making of policies and political issues but he is not the highest position of the government. The King manage the daily governing of the village but he reports to the State government.”

51.  As regard the availability of State protection and/or internal relocation, Mr Chan submits that the Board’s decision also failed to address the following matters relevant to the Applicant’s claim:

(a) The evidence that Soji, the King’s guard who freed the Applicant and his brother, that all three of them including Soji would be in danger and fleeing for their life, as Soji as a former member of the King’s guards would be in a position to assess the King’s reach and capacity to track down and harm his enemies;

(b)  The letter from the Applicant’s former football coach stating that the Applicant’s parents had never been found, and that: “In your case, since the king is still alive, your life is still not safe your father was his enemy.”;

(c)  The case of Alli v Canada (Minister of Citizenship and Immigration), 2002 FCT 479, 26 April 2002, and cited in the Applicant’s Grounds of Appeal, where the Canadian Federal Court held that the decision-maker had erred in finding that the applicant would enjoy reasonable State protection from the local king;

(d) The relevant COI from Australia’s Department of Foreign Affairs and Trade which show that while Nigerians can freely relocate internally, it can be more difficult for non-indigenes due to language, religious and cultural differences, particularly between northern and southern states;

(e) That the Adjudicator failed to identify or analyze any place or places of purported safety for the Applicant.   

52.  While it is true that the Adjudicator did in the Board’s decision refer to his own COI of which he did also give a summary in [15], and that at the oral hearing he did also engage the Applicant for his response regarding those COI (see [16]), as noted above, it is clear from the decision that the Adjudicator did not however do so regarding those COI presented and relied on by the Applicant referred to by Mr Chan above, nor did the Adjudicator do so with the Applicant’s Grounds of Appeal on the matters of State agent, State protection and internal relocation, all of which were relevant to the Applicant’s claim.

53.  In the premises and for these reasons, I agree that this ground is also reasonably arguable for the Applicant’s intended challenge.  

Ground (7) – Excessive Severity Threshold

54.  In this ground the Applicant complains that the Adjudicator erred in law in his finding that the ill-treatment suffered by him did not rise to the level of severity required to establish any ground of protection, as the ill-treatment described which involved prolonged physical and sexual violence, and was painful, deeply humiliating and degrading, and carried out while he was detained and helpless that it must have met the severity threshold for torture, CIDTP as well as persecution, and that such wholly erroneous application of the severity threshold also affects his assessment of the future risk to the Applicant.   

55.  In the Board’s decision, the Adjudicator recorded the Applicant’s ill-treatment by the King’s guard as stated in his Record of Interview before the Immigration Department [3.1], and proceeded to make his findings as to the severity of the Applicant’s injury at paragraph 9:

“Legal “Element 1”: “Severe pain and suffering”

13. The Appellant speaks of injury for which he did not need to see any doctor. He has not suffered “severe and physical or mental suffering reaching the minimum level of severity on the duration of the treatment, its physical or mental effects:”: Huri-Laws v Nigeria African Commission of Human and Peoples’ Rights, CAT 225/1998 at §41.”

56.  In the judgment of the Huri-Laws case cited by the Adjudicator, the claimant complained of being detained by the Nigerian’s State Security Service in a “sordid and dirty cell under inhuman and degrading conditions” and was denied “medical attention and access to his family and lawyer” [8], and that he was “tortured and rigorously interrogated, and that no time during his detention was he informed of any charges against him, nor were any charges ever brought against him” [9], and of which the African Commission on Human and Peoples’ Rights held at [41], the same paragraph referred to by the Adjudicator as noted above, as follows:  

“The prohibition of torture, cruel, inhuman or degrading treatment or punishment is absolute. However, as observed by the European Court of Human Rights in Ireland v. United Kingdom when called upon to decide on similar provision of the European Convention on Human Rights ”… the treatment prohibited under Article 3 of the Convention is that which attains a minimum level of severity and … the assessment of this minimum is, in the nature of things, relative …. It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim etc.” (Judgment of 18^th January 1987, series A no. 25 para. 162; see also the European Commission on Human Rights decision in Jose Antonio URRUTIKOETXEA v France, Decision of 5^th December 1996, p.157). The treatment meted out to the victim in this case constitutes a breach of the provision of Article 5 of the Charter and the relevant international human rights instruments cited above. Also the denial of medical attention under health threatening conditions and access with the outside world do not fall into the provision of ‘the respect of the dignity inherent in a human being and to the recognition of his legal status’, nor is it in line with the requirement of Principles 1 and 6 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. This, therefore, is a breach of article 5 of the Charter.”

57.  In the present case, and as noted in my consideration of Grounds (1) and (3) above, given the treatments which the Applicant claimed to have endured from the King’s guards under the circumstances of his case, that he had had to make his escape from the country quickly afterwards, and that he did seek medical treatment upon his arrival in Hong Kong, it is in my view reasonably arguable that the Adjudicator erred both in law and in fact in his finding that the Applicant has not suffered “severe pain and physical or mental suffering reaching the minimum level of severity on the duration of the treatment, its physical or mental effects” (see [9] of the Board’s decision) in his assessment of this aspect of the claim.

Decision  

58.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung(2007) 10 HKCFAR 676, and accordingly I grant leave to the Applicant on the basis of his proposed grounds as stated above.

59.  It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.   

Mr Abraham Chan SC leading Mr Timothy Parker, instructed by Patricia Ho & Associates, for the Applicant

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