RE KN

CACV 21/2021

[2021] HKCA 1106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2021

(ON APPEAL FROM HCAL 1711 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge P Li given on 13 January 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 6 May 2019 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 14 August 2017 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).

Background

2.  The applicant is a national of the Togolese Republic.  He entered Hong Kong on 14 March 2006 illegally and was arrested by the police on 1 January 2009.  He lodged a torture claim on around 2 February 2009 which was later converted to a non-refoulement claim.

3.  The applicant’s claim was based on threats from his paternal uncle (“Uncle”) who the applicant said was a soldier.  At §2 of Answer to Question 35 of Non-refoulement Claim Form, the applicant claimed that he did not know what Uncle did as a soldier or his affiliation with political parties.  The applicant claimed that in November 2005, he sold the land he inherited from his father in 2002 for US$4,000.  He split the money with his sister.  At §§6-7, he claimed that Uncle’s wife came to his room and warned him that Uncle was angry about the sale and was going to kill him.  Just when Uncle’s wife was leaving his room, Uncle came to his room and accused the applicant of sleeping with Uncle’s wife.  Uncle then took a gun from his room and the applicant escaped.  Uncle also threatened the applicant’s sister who fled to her friend’s house.  The applicant and his sister hid in Stephen’s house, who was the applicant’s friend.  After the applicant arrived in Hong Kong, Stephen told the applicant that Uncle told Stephen that the applicant would be killed or sent to prison upon his return.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 19 November 2018, and for reasons set out in the Board’s Decision, the Board on 6 May 2019 dismissed the appeal.  The Board’s Decision covered all four grounds for non-refoulement protection.

5.  In the Board’s Decision, the Board recorded at §§4 and 5 that:

“ 4. The Appellant told the Board that, in fact, his father never owned the land but it was held by the family, so the Appellant never had the right to sell it. The Appellant believed his father owned it because he had seen him working the land when he was a child. The Board put it to the Appellant that he sold the land when he was 30 years old, without checking first his ownership of the land, on the basis of a childhood belief.

5. The Appellant told the Board that his sister brought an unnamed man to him to sell the land and the Appellant signed a paper without reading it.  It was only three days later that the Appellant discovered that he did not own the land.  The Board put it to the Appellant that the sale was invalid, as he did not own the land, and therefore could be reversed.  The Appellant then suggested to the Board that his sister had convinced a court to validate the sale of the land, although he does not know how.  The Board put it to the Appellant that he had committed a fraud against his uncle and the Appellant conceded that this was the case but that he came to Hong Kong to save his life because his uncle was angry about being cheated.”

6.  At [14]–[18] of the Board’s Decision, the Board further observed that the applicant did not turn to the police for protection from his uncle and that Togo had overhauled its land tenure law and management system to bring the law in line with international standards.  The Board held at [18] that the applicant’s case did not include an allegation of a political, ethnic, religious or other dimension to the dispute and dismissed the claim under persecution risk.  As for BOR 2 and BOR 3 risks, the Board held at [19]–[26] that “for the reasons adduced above”, there was no real risk of the applicant facing those proscribed risks and dismissed his claim under these risks as well.  The Board further held at [28] that there was nothing to suggest any involvement by the Togolese authorities and dismissed the claim under torture risk.

The Judge’s decision

7.  The applicant filed a form 86 on 21 June 2019.  It was amended on 11 May 2020 upon the applicant obtaining legal aid.  The grounds as set in the amended form 86 are:

“ 1. The Board has failed to give reasons as to the applicant’s claim under BOR 2;

2. The Board has failed to properly deal with the issue as to (1) real risk re right to life (2) extended state acquiescence and (3) internal relocation;

3. The adjudicator erred in finding that the applicant committed a fraud against his uncle; and

4. The decision is in any event unreasonable.”

8.  After summarizing the facts and background of the case and having given due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review:

(1) In respect of the 1^st ground:

(a) On the duty to give reasons, the Judge cited the observations of Li CJ in Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at §51 and observed that:

“ The reasons must be adequate and clear for parties to understand the reasoning process. The reasons need not be elaborate but must be sufficient to enable the aggrieved party to consider the possibilities of administrative review and judicial review. However, whether reasons are adequate must depend on the context and the nature of the issues in dispute.”

(b) The Judge considered the transcript of the oral hearing before the Board.  The Judge highlighted in particular the following observations and comments by the Board:

“ I think you are insulting the intelligence of the Board, you are telling me that an unnamed man gave you four thousand dollars for the sale of land which you have no paper to prove that you own, you do not read the papers and you signed them. In what system is this a proper sale and in what customary system in Togo is this permissible? How do you expect the Board to believe that you think you own the land when it is owned by your family and how is the sale validated either by the community or the court? None of it makes sense and you are insulting the Board…” (counter 65)

“ Your story doesn’t make sense. The court cannot transfer the land to this man unless the court has proof that you own the land.” (counter 77)

The Judge further highlighted the following exchange between the Board and the applicant:

“ A: Your uncle is right to be angry, no?

IT: Yes, that is why his uncle is so angry.

A: Okay, so uh your uncle is angry with you because you cheated him. Why don’t you give the money back and reverse the sale?

IT: He said that uh, so he cannot give the money back and because he also already spent that money.

A: You spent 2,000 dollars in three days?

IT: So, uh, he didn’t spend all the money in those 3 days but he said he needed that money, so, he didn’t want to give the money back.

A: So you cheated your uncle and you refused to give the money back?

IT: He said yes, that is why he, he, he flew, he left.” (counters 81-90)

(c) The Judge concluded at [31]–[33] that:

“ 31. In my view, it is all too obvious that the adjudicator disbelieved the story of the applicant. He thus concluded that there was no real risk ...

32. It is true that the adjudicator had not set out the detailed steps of his thought process. He did not rule that the applicant was not credible. However, a fair reading of his decision and the relevant transcript would leave this court in no doubt that the reasons are adequate. The applicant would not be prejudiced in anyway.

33.   I reject this ground.”

(2) In respect of the 2^nd ground:

(a) On the duty to investigate, the Judge referred to TK v Jenkins [2013] 1 HKC 526 at 545C-D and observed that:

“ In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the Adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”

(b) The Judge observed that the issues which the applicant complained the Board had failed to investigate turned on the credibility of the applicant, and that:

“ 39. …The adjudicator had considered the evidence and concluded that there was no real risk of the applicant’s right to life. He had obviously rejected the evidence that the applicant could not offer a bribe.

40. In order to establish an infringement of Art. 2, the applicant must first establish there is a real risk. Secondly, he must establish that the State authorities failed to obviate the risk by providing appropriate protection.

41. In the present case, the applicant could not establish a real risk of harm to his life, there is no need to consider State protection. The issue of extended state acquiescence does not arise as there was no evidence that the Togolese police had knowledge or ought to have aware of a real risk of harm to the applicant’s life.

42. I reject this ground.”

(3) In respect of the 3^rd ground, the Judge observed as follows:

“ 44. I have set out the most telling parts of the transcript above. It is however essential to read the whole transcript in order to be in context. The adjudicator only used the word ‘cheat’ in several occasions. I am sure the applicant was fully aware of the view of the adjudicator. He had tried to explain but gave more unconvincing answers. He finally admitted that he cheated his paternal uncle.

45. Mr. Ng queries the use of the terms ‘fraud’ and ‘fraudulent’ by the adjudicator in his decision. Mr. Ng is not clear whether the adjudicator meant civil or criminal liability. As I pointed out above, the adjudicator only used the term ‘cheat’ during the oral hearing, the applicant should not have any difficulty understanding the term in the context of the sale of the land. There is nothing in the transcript which indicated the contrary.

46. In my view, the terms ‘fraud’ and ‘fraudulent’ are used loosely in the decision. They convey the same meaning as ‘cheat’. It would not cause any misunderstanding or prejudice to the applicant.

47. There is no substance in this ground.”

(4) In respect of the 4^th ground, the Judge observed that having rejected the first three grounds, he found nothing unreasonable in the decision of the Board.  He rejected also the 4^th ground.

Grounds for appeal

9.  The applicant is not legally represented in the appeal.  In the Notice of Appeal filed on 22 January 2021, the applicant stated that:

“ 1. The judge is wrong to say that the terms ‘fraud’ and ‘fraudulent’ are used loosely in the decision. They convey the same meaning as ‘cheat’ (see #46) and it would not cause any misunderstanding or prejudice to me. I admitted to the Adjudicator that I cheat my uncle but I do not admit that I fraud him which is more serious and criminal offence.

2. The judge is wrong in agreeing that the Adjudicator failed to give sufficient reason for BOR2 claim on paper (see #19) but in fact reasons are adequate (see #32).

3. The judge is wrong in agreeing that the Adjudicator had not ruled that I was not credible and he had not set out the detailed steps of his thought (see #32) but I could not be prejudiced in anyway.  If the Adjudicator did not trust me at the beginning what I was saying in the oral hearing, he would not trust at all.”

10.  In a documents dated 5 January 2021 and sent to this Court on 5 February 2021, the applicant responded to certain reasons given by the Director and the Board as summarised by the Judge in the CALL-1 Form.

11.  The applicant failed to comply with the direction made by this Court on 5 May 2021 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

12.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 26 July 2021 has therefore been vacated and the applicant debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

14.  On the nature of the Board’s duty to give reasons, the Judge has correctly observed, based upon Prabakar, that those reasons need not be elaborate, though they must be sufficient to enable the aggrieved party to consider the possibilities of administrative review and judicial review.

15.  The transcript of the oral hearing before the Board has been made available to the applicant.

16.  The Judge has considered the Board’s Decision together with and in the context of the transcript of the oral hearing.  In our view, the Judge is correct in concluding that it is obvious that the Board has disbelieved the applicant. 

17.  The conclusion that the Board has disbelieved the applicant is also supported by the contents and tenor of [4] and [5] of the Board’s Decision, where the Board recorded various matters which the Board “put” to the applicant during the hearing.

18.  We are of the view that the Judge is correct in concluding that “a fair reading of his decision and the relevant transcript would leave this court in no doubt that the reasons are adequate”.

19.  The Judge is also correct in observing that once the factual basis of the applicant’s claim has been rejected, any associated BOR 2 risk falls away.

20.  The 1^st ground put forward on behalf of the applicant for leave, which is in effected adopted and repeated by the applicant as his 2^nd and 3^rd grounds of appeal, has no merit. 

21.  In respect of the applicant’s 1^st ground of appeal:

(1) the applicant accepts that he admitted to the Board that he had cheated Uncle, but that he did not admit that “I fraud him which is more serious and criminal offence”;

(2) the Board is not a criminal court.  Its observations on the applicant having cheated Uncle do not constitute any finding that the applicant has committed any criminal offence in the country of origin.  They were made to illustrate the senselessness of the applicant’s factual claim.  As the Judge has observed, which we agree, “the applicant was fully aware of the view of the adjudicator.  He had tried to explain but gave more unconvincing answers.  He finally admitted that he cheated his paternal uncle”;

(3) In our view, the 1^st ground of appeal also has no merits.

22.  The appeal is dismissed.