LB v. TORTURE CLAIMS APPEAL BOARD

HCAL 2659/2019

[2024] HKCFI 2333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2659 OF 2019

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;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of The Republic of the Congo (“Congo”) who arrived in Hong Kong on 1 November 2004 on a false French passport as a visitor with permission to remain for 3 months when he subsequently did not depart and instead overstayed, during which he made a refugee application to the UNHCR, and after it was rejected on 20 April 2005, he then surrendered to the Immigration Department and raised a torture claim on the basis that if he returned to Congo he would be harmed or killed by the Congo government and authorities under the current regime of President Denis Sassou-Nguesso (“Sassou”) who overthrew the former government for which the Applicant had worked as a security/special force military personnel and fought for in the ensuing civil war, and as a result had been detained and tortured before he managed to make his escape and fled the country to come to Hong Kong to seek protection from being harmed or killed if refouled to Congo, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bacongo District of Brazzaville, Congo. After leaving school he was recruited in November 1992 by the regime of then President Pascal Lissouba (“Lissouba”) for military training at the Instruction Centre of Madingou in Aubeville, and thereafter joined the Rapid Intervention Special Brigade to fight against the rebellious militia group known as the Ninjas formed by an opposition politician named Bernard Bakana Kolèlas (“Kolèlas”).

3.  By end of 1993 the rebellion was largely contained, and in 1994 the Applicant changed to work as a police officer in the capital Brazzaville.

4.  In June 1997 the former President Sassou instigated a coup d’état amongst the Army which split into 3 factions, with the one known as the Cobras which supported Sassou and joined by remnants of the Kolèlas’s Ninjas fighting together against the factions that supported President Lissouba known as Aubevillois and Cocoyes, and for which the Applicant rejoined to fight against the rebellious Cobras and Ninjas that eventually led to a civil war for the next 4 months.

5.  Eventually the faction which supported Lissouba was defeated by the Cobras and Ninjas with the help of the army sent by neighbouring Angola, whereupon Lissouba fled from the country into exile, and that Sassou declared himself to be the President again when he then ordered for the arrest and execution of all those who had fought for Lissouba against him, especially those who were trained in Aubeville then known as Aubevillois of which the Applicant was a past member, and so he together with some other Aubevillois fled from Brazzaville, but were intercepted at a train station by the Cobras and the Angolan army, and were then detained in one of their military camps.

6.  During their detention the Applicant and his fellow captives were interrogated and tortured for confessions including beating with bamboo sticks and burning with melting plastic bags all over his body every day for 2 weeks, and as a result the Applicant suffered severe injuries that could be seen from the many scars on his body and limbs.

7.  Subsequently the Applicant together with 2 other fellow Aubevillois managed to make their escape from the military camp by climbing over the walls into the forest behind the camp, and from there they fled to Pointe-Noire where they split up, with the Applicant going to his cousin’s home to hide there, but his cousin was afraid of being implicated and arranged for the Applicant to hide instead in her in-laws’ place in Diosso for several days before he moved on to hide in a nearby forest (“the Site”) in November 1997.

8.  For the next 7 years the Applicant hid in the Site staying mainly in a hut together with some other people also fleeing from the Sassou government, during which they could only fish and hunt for food, and occasionally went into the nearby town for supplies and news about the latest situations in the country, including news of subsequent fighting amongst the rebellious factions of the Ninjas and the Cobras against the Sassou’s army.

9.  In 2002 the Applicant heard that the Sassou government was granting amnesty to those members of the faction that had supported Lissouba in the civil war but not to the Aubevillois or the Cocoyes, and so being an Aubevillois he feared that he would eventually be arrested and persecuted by the Sassou’s government that he decided to leave the country, and so with his cousin’s help he departed Congo on 31 October 2004 together with 2 French men who supplied him with a faked French passport for travelling to Hong Kong.

10.  Upon arriving in Hong Kong, the 2 French men retrieved the faked passport from him and disappeared, whereupon the Applicant made his way to Chung King Mansion in Kowloon where some of his Congolese countrymen helped him to make a refugee application to the UNHCR, and after it was rejected on 20 April 2005, the Applicant then surrendered to the Immigration Department and raised his torture claim on 4 June 2005, but for which the screening process only started in 2012 when 2 screening interviews were conducted for him in August 2012, during which 21 photographs of the scars on his body and limbs were taken by the Immigration Department which he claimed to be the result of injuries from the tortures that he received during his detention by the Cobras and the Angolan army in 1997.

11.  It would be relevant to note here in the Applicant’s Answer to Questionnaire raised by the Immigration Department as to how he sustained the injuries that led to those scars shown in the 21 photographs taken by the Immigration Department during the screening of his torture claim as follows (BOD3/9/419 – 420):

“12. At the military camp, we were detained in a big bedroom. There were bunk beds in the room with no mattresses. For the first 2 days, we were handcuffed in the room, threatened with death, beaten with bamboo sticks and burnt with melting plastic bags. The jailors were trying to ascertain whether we were part of the Aubevillois, and to collect information about the Lissouba faction.

13. After the first 2 days, we continued being interrogated and tortured by the Cobra and the Angolan army. We were frequently beaten with bamboo sticks. In the morning, we would be ordered to hold up our fingers and the torturers would beat our fingertips 15 times. After that, we would be beaten again when we did not or could not answer their questions. We were also ordered to clean the military camp, which was in fact very difficult as we were battered and suffering from wounds. We were only given 2 pieces of dry bread and a bottle of water each day.

…

15. As a result of the torture I received in the Makola camp, I sustained various injuries and, to date, I still bear many scars on my body. My wrists bear scars from being handcuffed. The nail of my left middle finger was infected after being beaten, and it was in such a poor state that I removed my nail by myself later. My back and left upper arm have burn marks as a result of the burning I received from melting plastic bags. Further, I have scars on my body that show that I had been dragged on the floor and beaten with bamboo sticks. The back of my head also has a scar from being hit by the butt of a gun. I did not receive medical treatment for any of my wounds because I had to go into hiding after escaping from the Makola camp.”

12.  While being released on recognizance pending the determination of his torture claim, the Applicant formed a relationship with his present girlfriend, and with whom they have a daughter born in Hong Kong on 11 December 2011 and now aged 12.

13.  By a Notice of Determination dated 12 October 2012 the Director of Immigration (“Director”) rejected his torture claim upon finding from relevant Country of Information (“COI”) that the Sassou government had granted amnesties to the rebels in 2002, and with the peace agreement signed with the Ninjas in 2003 that the Applicant’s assertions of having to continue to hide in the forest or the Site and that his previous involvement as an Aubevillois would make him a target by the current regime of Congo for persecution and torture upon his return to Congo participation were not accepted as credible, while those 21 photos would not advance his claimed risk of torture as they would at most indicate his past sufferings only (BOD 2/9/239).

14.  On 29 October 2012 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s determination on his torture claim, but on 30 April 2015 the Board adjourned his appeal pending the Director’s determination of his claim on the remaining applicable grounds other than torture risk under the Unified Screening Mechanism (“USM”) in place since March 2014, and for which the Applicant repeatedly requested that his screening process by the Immigration Department be dealt with urgently and speedily due to his claim of deteriorating mental conditions with serious psychiatric symptoms such as anxiety, memory and attention disruption and mood disturbance resulted from the traumas suffered while in Congo and exacerbated by the delays in the screening processes of his claim which he raised back in 2005 (BOD2/9/373), and had obtained a psychological evaluation report in 2014 on his such mental health status and related issues to his torture claim.

15.  Eventually the Applicant attended a further screening interview on 9 February 2017 before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”), and submitted additional materials and documents as well as relevant COI in support of his non-refoulement claim under the remaining applicable grounds.

16.  By a Notice of Decision dated 21 March 2018 the Director also rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

17.  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 Congo government and authorities upon his return to Congo as low due to doubts over his claim of being an Aubevillois trained under the Lissouba regime in November 1992 when the relevant COI show that the Aubevillois militia was not created until January 1994 which contradicted the Applicant’s account, that even if he were indeed an Aubevillois that there was no objective evidence to support his claim of being pursued by the authority or that the Congo government would have any further adverse interest in him other than his own speculations, and that in any event according to relevant COI that the current Congo government had granted amnesties to the rebels in 1999 and 2002 including even top leaders of the former rebellious Ninjas that it is assessed that any risk which the Applicant may face as an Aubevillois is low given the long lapse of time since he left the country that he would no longer be a target of the Congo government, and with the introduction of several programs for disarming former rebels and for re-integrating ex-combatants back into the society that his claim for non-refoulement protection failed on all the applicable grounds.

18.  On 3 April 2018 the Applicant with legal representation as before lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 8 March 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer, as well as with the production of the 2014 psychological evaluation report which stated various traumas experienced by him in his years in Congo and his resultant mental status allegedly exacerbated by the delays in the processes of his claims, of which more will be referred to as observed by the Board in its decision below.

19.  On 12 June 2019 the Board dismissed the Applicant’s appeal and confirmed the Director’s decision upon finding the Applicant’s evidence as vague, inconsistent, rehearsed and unpersuasive as regard his claimed training as an Aubevillois and involvement in fighting against the Ninjas in 1993 and the rebellious militias in the 1997 civil war for the Lissouba government as unconvincing and unreliable and as against the relevant COI regarding the nature and severity of those military conflicts and civil wars at the time, that it is not credible or plausible that he had been detained and tortured for 2 weeks by the Cobras and the Angolan army just to force him to reveal whether he was an Aubevillois when COI show indiscriminating killings of civilians suspected of supporting the Cocoyes or the Ninjas at the time, nor was his claim of being able to subsequently escape from the military camp by climbing over the wall after being detained, tortured and physically harmed in the manner as claimed every day with little food or water for 2 weeks, or of his claim of arriving at his cousin’s place when she did not offer him food medical treatment or shelter and yet was willing to help him to obtain a passport and to arrange for him to flee the country for Hong Kong, and rejected all his claimed past incidents in that the Applicant had embellished and exaggerated his profile and his claim in an attempt to prolong his stay in Hong Kong, and concluded that there is no real risk of the Applicant facing harm on these bases if he returns to Congo now or in the foreseeable future as even if he had indeed worked as an Aubevillois and harmed by the Cobras as claimed given the long passage of time of over 20 years since the 1997 civil war, that he never encountered any threats from the Sassou faction for 7 years from 1997 to 2004 when he was also able to leave the country without any difficulty, and that the circumstances and the political, general and security situation in Congo have since changed significantly with no credible evidence to indicate that former militias or members of the Lissouba government are still specifically targeted for harm in recent years that it is not accepted that the Applicant will face any such risk under any of the applicable grounds now or in the foreseeable future upon his return to Congo.

20.  Of those findings of the Board as to its assessment of credibility, it would be of particular relevancy to note in more details those that were clearly core evidence of the Applicant’s claim: The 2014 psychological evaluation report as to his mental state, and his scars shown on those 21 photographs taken by the Immigration Department during the screening process of his torture claim.

21.  As to the former which the Applicant relied on for his complaint of the lengthy delays in the screening processes of his claim which led to the manifestation of his mental status caused by the traumas experienced in the civil wars and the tortures that he had received during his detention by the Cobras and the Angolan army, the Adjudicator made the following observations in the Board’s Decision:

“50. The 2014 psychological evaluation report relevantly states that Dr Mistler saw the Applicant on 16 and 23 May 2014 and 6 June 2014 for a psychological evaluation at the request of his solicitors Daly & Associates. She was provided with the transcripts of the Applicant’s Petition hearing on 14 January 2013, 15 January 2013 and 21 January 2013 (“the transcripts”) and the Istanbul Protocol. Dr Mistler stated that the Applicant appeared to be a credible reporter. He reportedly never had a psychological evaluation or psychological care of any kind; and following the trauma experienced in the army at the hands of the Cobras and Ninjas, he began to experience symptoms of post-traumatic stress, including flashbacks, sleep and mood disturbance; and his mental health worsened over the ensuing years of hardship. Over the years, he experienced sleeplessness, loss of appetite, anxiety and panic, sad mood, tearful, rumination, hopelessness, memory difficulties, inability to concentrate and headaches, and he reportedly experienced an acute exacerbation of the aforementioned symptoms every time he has been asked to recount his history.

51. Dr Mistler stated that the Applicant’s symptoms were consistent with PTSD of the chronic type and consistent with someone who has experienced torture; his attention, memory and concentration disturbances can be attributable to PTSD; his capacity for remembering in a cohesive fashion has been impaired further with the repeated demands from authorities to revisit and tell his story. She stated that the Applicant responded positively following the two-week trial of antidepressant medication from Dr Fung, with increased appetite and improved sleep patterns, but he did not note any improvement in his memory. He was encouraged to continue to take the medicine on an ongoing basis for at least the next year.

…

57. No new medical report or psychiatric assessment was provided to the Board … before, during or after the hearing. Nor did the Applicant raise any difficulty in seeking a new medical assessment or pro bono help.

58. At the beginning of the hearing, the Applicant expressed via his legal representative that he wishes to give oral evidence at the hearing despite the 2014 psychological evaluation report and the absence of new medical evidence.

59. The Board asked the Applicant how he is feeling, the Applicant responded that he is fine.

60. When asked at the hearing, the Applicant said that he did not see another psychologist, doctor or psychiatrist after he saw Dr Mistler in June 2014. The Applicant said that after taking the two weeks trial of antidepressant medication in 2014 as referred to in the psychological evaluation report, he did not take any other medication. He said that it was because the initial consultations were arranged with the help of his lawyer and he did not need to pay anything, but after that, he was told that he would need to pay so he did not continue.

…

62. I have carefully considered the 2014 psychological evaluation report in the context of all the evidence, materials and submissions.

63. Dr Mistler is a licensed psychologist from the United States with a post-doctoral qualification in the treatment of trauma. The 2014 psychological evaluation report stated that Dr Fung conducted a medical review and prescribed medication for the Applicant. No medical report from Dr Fung has been provided. The Petition hearing took place in January 2013, more than one year before Dr Mistler saw the Applicant in May and June 2014. As Dr Mistler noted in the report, it would be difficult to ascertain emotional response from a transcript. Dr Mistler commented “as a lay reader” of the transcript that the Applicant was likely extremely anxious and highly symptomatic during the interview and the Petition hearing when he was asked adversarial questions during these proceedings.

64. Dr Mistler opined that “ … a process by which a coherent narrative is recounted by the claimant is required to ‘prove’ torture is by definition flawed”. Dr Mistler stated that she was provided with the Istanbul Protocol. The Istanbul Protocol was a collaborative effort between a number of forensic scientists, physicians, psychologists, human-rights monitors and lawyers working in different countries. It relevantly states that in obtaining background information on torture and ill-treatment, “questions should be designed to elicit a coherent narrative account”.

65. In my view, although the Applicant has the ultimate responsibility for his claim, that is not to say that applicants must prove torture by recounting a coherent narrative. Applicants who have not been harmed in the past, or unable to recount a coherent narrative might also establish a real risk of future harm because for example, their circumstances or the circumstances in their country have changed during their absence. Moreover, the exercise of processing the protection claim is one of “joint endeavour” and the Director and the Adjudicator do not simply sit back and passively preside over an adversarial process.

66. It is unclear how Dr Mistler’s sweeping statements that “ … claimants are handicapped by their lack of education and illiteracy. This often leads to an inability to communicate their experience adequately … within an adversarial process. This very process will likely lead to the claimant becoming further anxious and confused which precludes a coherent and informed response. Therefore, requiring a torture victim to navigate and advocate for themselves in this type of environment runs counter to the goal of the legal process, which is to vet the person’s story and determine credibility” relate to the Applicant. The Applicant had 12 years of education. He speaks the French and Lingala languages, and he understands English. He is not illiterate. The Applicant is legally represented and he has been assisted by his lawyers throughout the torture claim and the non-refoulement claim processes.

67. Leaving these aside, I have taken into account Dr Mistler’s diagnosis and professional opinion in the proceedings and assessment of this case. I accept that the Applicant may have suffered trauma and injuries as a civilian who survived the civil wars in Congo in the 1990s, which may present him with some challenges in effectively putting forward his claim in a consistent manner.

68. The psychological evaluation report was prepared some four years ago in 2014.

69. As pointed out by counsel for the Director, it seems very odd that the Applicant would not have requested to undergo continuous treatment given the diagnosis. I also consider it very odd that the Applicant would not have received continuous treatment from 2014 if his condition was one that necessitated follow-up treatment and medication. Moreover, there is nothing to indicate that the Applicant has attempted to seek public healthcare services or consultations for his mental conditions in Hong Kong.

70. The Applicant has been given a reasonable opportunity to provide updated medical evidence, He has elected not to do so.

71. I have carefully considered the particular circumstances of this case and the high standards of fairness required. However, for the reasons given in this decision, I refused to make a direction to request for a new psychological, psychiatric or medical report in order to determine the Applicant’s fitness to attend the hearing.

72. There is no credible evidence to suggest that the Applicant’s condition has deteriorated. The evidence from the Applicant’s previous legal representative is that she does not know if the Applicant’s condition has deteriorated or improved given the passage of time. The Applicant had requested for an oral hearing. He said that he was feeling fine on the day of the hearing, and he wishes to give oral evidence at the hearing despite not having new medical evidence.

73. The Board has always kept in mind the Applicant’s mental health, his diagnosis, his physical conditions, any potential effects of trauma and all of his personal circumstances in preparing for the hearing, conducting the hearing and throughout the processing and assessment of this case.

…

80. I disagree with the suggestion in the closing submissions for the Applicant that the 2014 psychological evaluation had been disregarded due to the way the hearing progressed or the adversarial nature of the hearing. The Board has always been mindful of the Applicant’s conditions and the 2014 psychological evaluation report.”

22.  As for those 21 photographs of the Applicant’s scars, the Adjudicator stated in [223] of the Board’s Decision as follow:

“The photographs show some scars on the Applicant’s head, back, arm, and left hand. It is not apparent from the photos as to how, when, where or who caused these injuries.”

23.  On 11 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as amended for his intended challenge:

(1)  That the Board erred in failing to require the Applicant to undergo a medical examination under section 37ZC of the Immigration Ordinance in respect of the Applicant’s claimed physical injuries and mental issues in assessing the credibility of his claim of having been detained and tortured by the Sassou government;

(2)  That the Board failed to conduct proper or sufficient inquiry into the relevant COI and/or erred in its assessment of the country condition in finding that there would be no real risk of harm to the Applicant upon his return to Congo now or in the foreseeable future; and

(3)  That Board erred in its assessment of the Applicant’s credibility by failing to apply or properly apply all relevant principles pertaining to assessing credibility in the context of non-refoulement claim.

24.  In support of these proposed grounds for judicial review, Mr Francis Ngan of Counsel who appeared for the Applicant at the hearing of his application put forward 2 skeleton arguments, with the First Ground referred to as the Medical Examination Ground which is clearly relevant to the Third Ground being on the Board’s evaluation of the credibility of the Applicant’s claim, and which I propose to consider together as the Credibility Ground.

Grounds (1) & (3): The Credibility Ground

25.  Mr Ngan submits that the Board erred in failing to require the Applicant to undergo a medical examination under section 37ZC of the Immigration Ordinance as to the scars and marks on his body as shown by the photographs taken earlier by the Immigration Department for the screening of his earlier torture claim in 2006 and produced to the Board in his appeal as one of the most important evidence corroborating his claim to have been subjected to torture and/or ill-treatments in his home country, but which the Board simply brushed aside as “not apparent from the photos as to how, when, where or who caused these injuries”: see Board’s Decision at [223] & [224].

26.  According to the earlier decision of the Director dated 12 October 2012 which rejected the Applicant’s torture claim, the photographs which are 21 in total were taken by the Immigration Department during the screening interview of the Applicant on 21 March 2006 (BOD2/9/237), and of which the Adjudicator described in [223] of the Board’s Decision to show “some scars on the Applicant’s head, back, arm, and left hand” (BOD1/7/138).

27.  As such, Mr Ngan submits that if the Adjudicator was not certain from these photographs as to the causation of those scars, and knowing that they were one of the core elements of the Applicant’s case, and hence relevant to the consideration of his claim, it must follow that such injuries were also in dispute, and hence the Board should have required the Applicant to undergo medical examination under the relevant section of the Ordinance, and that its failure in this respect was contrary to the relevant principles in international refugee law, in particularly those as set out in the UNHCR’s Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2022 edition (“Istanbul Protocol”).

28.  As noted above, while the Applicant’s complaint under this ground is over the necessity of calling for a medical examination or report by the Board on his scars as shown in those photographs, I consider it as part of the core issue essentially that of the Board’s assessment of the credibility of his claim of having been tortured in Congo that led to his departure of his country to seek protection in Hong Kong, and before going into those principles set out in the Istanbul Protocol relied on by Mr Ngan for the Applicant, it would be relevant to first note what exactly were the Adjudicator’s findings as regard those scars on the Applicant’s body and their relevancy to its assessment of the credibility of his claim as stated in the Board’s decision:

“221. I have considered the photographs that were provided in support of the claim that the Applicant was tortured and mistreated during the two weeks of detention by the Cobras and the Angolan army. In the Questionnaire, the Applicant stated that these photos were taken by the Department during his previous torture claim screening interviews in 2006.

…

223. The photographs show some scars on the Applicant’s head, back, arm, and left hand. It is not apparent from the photos as to how, when, where or who caused these injuries.

224. Considering all of the Applicant’s evidence, all the information and materials, including the 2014 psychological evaluation, and submissions in its entirety, and given my concerns about the Applicant’s problematic evidence, I am not persuaded that these injuries and scars were caused by the ill-treatment during the two weeks’ detention as claimed. The country information is that during the 1993 and the 1997 civil wars, many civilians were affected, physically harmed and killed, and the indiscriminate shelling in Congo caused heavy casualties among the civilian population. I consider it speculative to make a finding as to the timing and the circumstances in which the Applicant sustained these injuries that resulted in the scars. I do not accept that these injuries and scars establish the Applicant’s claim that he was detained and tortured by the Cobras and the Angolan army.

225. In considering all of the inconsistencies, the problematic evidence and credibility issues, I have carefully considered all of the Applicant’s explanations and submissions, and whether the Applicant’s conditions, his diagnosis of chronic PTSD in 2014, trauma, stress, anxiety, the lengthy passage of time, other underlying factors and/or external factors could satisfactorily explain these issues. However, I am not so persuaded. I do not consider that these could explain the multiple external inconsistencies. I also do not consider the vague, evasive and unconvincing evidence regarding the Applicant’s core claim, which are significant and memorable incidents, could adequately be explained by these explanations, submissions and factors.

226. Finding of fact is a matter for the Board after considering all the evidence and information in the around. As noted above, in the 2014 psychological evaluation, Dr Mistler stated that the Applicant appeared to her to be a credible reporter, and she set out what the Applicant had reported to her, including the claimed trauma that he experienced in the army at the hands of the Cobras and Ninjas, living in the forest for seven years and his experience in the two decades before he saw her in 2014. These were matters that the Applicant had told Dr Misler. Given my concerns about the reliability and credibility of the Applicant’s evidence, I give these opinion evidence in the psychological evaluation no weight in establishing the claimed past incidents.

227. I accept that there were civil wars in the Republic of the Congo in 1993, 1997 and 1998. These were tragic and terrifying incidents. These civil wars would have greatly affected the Applicant who was in Congo at the time. I am sympathetic towards the Applicant’s situation at that time. I am prepared to accept that the Applicant lived in the forest for a period of time, similar to the abovementioned 150,000 Congo citizens who fled into the forests in the 1990s because of the civil wars.

228. However, considering all the evidence, submissions and information as a whole, given the multiple external inconsistencies, the Applicant’s problematic evidence, and for the reasons given above, I do not accept that the Applicant fled to The Site in mid-1992 because of Ninjas’ attack. I do not accept that the Applicant was recruited or trained as a soldier; worked as a police officer, a soldier or an Aubevillois, or perceived as such. I do not accept that the Applicant was intercepted, detained, interrogated, tortured or harmed by the Cobras and Angolan army as claimed. I reject all the claimed past incidents. I consider that the Applicant embellished and exaggerated his profile and his claim in an attempt to prolong his stay in Hong Kong. I do not accept that the Applicant has been truthful in his claim. As such, I find that there is no real risk of the Applicant facing harm on these bases if he returns to Congo now or in the reasonably foreseeable future.”

29.  While it is clear from the above that the Adjudicator rejected those injuries and scars of the Applicant shown in the photographs as having been caused by ill-treatments during his claimed two weeks’ detention essentially on the bases of what she found to be multiple external inconsistencies and problematic evidence of the Applicant, Mr Ngan submits that given those scars were one of the most important evidence corroborating the core of the Applicant’s claim that the Adjudicator was under a duty of joint endeavour to investigate them as part of the relevant issues in respect of the Applicant’s non-refoulement claim with high standards of fairness, and hence should have directed for a medical examination of the Applicant to ascertain the cause of those scars instead of just brushing aside those photographs as having no probative value.

30.  The power to direct a claimant to undergo a medical examination is provided under Section 37ZC (1) of the Immigration Ordinance which stipulates as follows:

“If the physical or mental condition of the claimant is in dispute and is relevant to the consideration of a torture claim –

(a) An immigration officer or (on an appeal) the Appeal Board may require the claimant to undergo a medical examination to be conducted by a medical practitioner as arranged by an immigration officer; or

(b) An immigration officer may, at the request of the claimant, arrange for a medical examination of the claimant to be conducted by a medical practitioner.”

31.  Mr Ngan submits that the Board’s failure to direct for a medical examination of the Applicant’s scars as shown in the photographs in its determination of his claim was contrary to the relevant principles in international refugee law, which thus beings me back to the Istanbul Protocol, of which it would be relevant to first refer to the following background note as to its international recognition as a reference guide to proper investigation and assessment of torture and ill-treatment:

“The Istanbul Protocol and its Principles are routinely used as a point of reference for measuring the effectiveness of investigations into torture by the Committee against Torture, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the standards laid out in the Istanbul Protocol have been applied by regional human rights bodies, including the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights and the European Court of Human Rights, as well as many national institutions. In his annual report to the General Assembly in October 2014, the Special Rapporteur on torture, Juan E. Mèndez, recognized the critical role of forensic and medical sciences in the investigation and prevention of torture and other ill-treatment. He stated that “The Istanbul Protocol standards serve as a standard for evaluation of medical evidence, as a reference tool for experts delivering expert opinions, as a benchmark for assessing the effectiveness of the domestic fact-finding and as a means of redress for victims” and that: “Quality forensic reports are revolutionizing the investigation of torture.” Such recognition by United Nations human rights bodies, regional human rights courts and United Nations Special Rapporteurs has facilitated the widespread use and acceptance of the Istanbul Protocol in medico-legal and other contexts worldwide. During the past 20 years, the Istanbul Protocol and its Principles have been increasingly used by State and non-State actors to guide their investigations into torture and ill-treatment.”

32.  In the case of the Applicant, Mr Ngan submits that the following principles laid down in the Istanbul Protocol are of particular relevancy and should have been applied by the Board in its determination of his claim:

-  Purposes of an Investigation into Torture or Ill-treatment:

190.  The broad purpose of the investigation is to establish the facts relating to alleged incidents of torture or ill-treatment, with a view to identifying those responsible for the incidents and facilitating their prosecution, or for use in the context of other procedures designed to obtain redress or protection for victims. The issues addressed here may also be relevant for other types of investigations of torture or ill-treatment. To fulfil this purpose, those carrying out the investigation must, at a minimum, seek to (a) obtain statements from the victims of alleged torture; (b) recover and preserve evidence, including medical evidence, related to the alleged torture or ill-treatment to aid in any potential prosecution of those responsible; (c) identify possible witnesses and perpetrators and obtain statements from them concerning the alleged torture or ill-treatment; and (d) determine how, when and where the alleged incidents of torture or ill-treatment occurred as well as any pattern or practice within which it took place, including identifying particular locations and perpetrators, methods used and the role of corruption, and other contextual factors, such as gender, sexual orientation, gender identity, disability, race, ethnicity, nationality, age and socioeconomic status of the victim(s);

-  Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

-  7. Medical expert’s report

…

199(b)   The background. A detailed record of the subject’s account of events as given during the interview, including alleged methods of torture or ill-treatment, the time at which torture or ill-treatment was alleged to have occurred and all complaints of physical and psychological symptoms;

199(c)   A physical and psychological examination. A record of all physical and psychological findings upon clinical examination, including appropriate diagnostic tests, body diagrams to record the location and nature of all injuries and, where possible, colour photographs of all injuries;

199(d)   An opinion. An interpretation as to the probable relationship of physical and psychological findings to possible torture or ill-treatment. A recommendation concerning any necessary medical and/or psychological treatment or further examination(s) should also be given;

-  Conducting an Investigation:

-  (c) Medico-legal evidence

228.  Medico-legal documentation can take place in the form of notes, medical charts (including body charts, such as those included in annex III, to show the location of injuries), official medical certificates, computer files, digital mobile files, recordings, photographs, reports or a combination thereof. Collecting medico-legal evidence consists of the collection of: (a) the narrative history of the alleged torture or ill-treatment, medical (physical and psychological) examination and documentation of the findings for the purpose of corroboration and, where feasible, storing and processing of samples; and (b) physical evidence – forensic specimens – from the body of the alleged victim(s) (or other persons involved). Medico-legal evidence should only be collected, processed and analysed by trained health and forensic professionals. Investigators requesting medical services to provide medical records or service provision or patient information should only do so in situations in which they are duly mandated and have the requisite legal powers, while fully considering confidentiality, date protection and informed consent;

229.  Investigators should arrange for medical examinations of the alleged victims. The timeliness of such medical examinations is particularly important. A medical-legal examination should be carried out regardless of the length of time since the alleged torture or ill-treatment and be arranged urgently before acute signs fade. The examination should include an assessment of the need for treatment of injuries and illnesses, psychological help, advice and follow-up … A psychological appraisal of the alleged torture victim is always necessary and may be part of the physical examination or, in situation in which there are no physical signs, may be carried out as a psychological assessment only …;

230.  The Istanbul Principles indicate that clinicians should provide an “interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. In their interpretation of findings, clinicians should assess the level of consistency between physical and psychological findings and the allegations of torture or ill-treatment … The Istanbul Principles also require clinicians to provide a clinical opinion on the overall possibility of torture or ill-treatment. In formulating a clinical opinion on the possibility of torture or ill-treatment, clinicians should consider all relevant clinical evidence, including “physical and psychological findings, historical information, photographic findings, diagnostic test results, knowledge of regional practices of torture, consultation reports etc.”, as stated in annex IV. In addition to providing a conclusion on the possibility of torture or ill-treatment, clinicians should reiterate current symptoms and disabilities and likely effects on social functioning and provide any recommendations for further evaluations and care for the individual;

265.  Decision makers, particularly in asylum and refoulement cases, must apply the correct standard of proof – of a reasonable likelihood or real risk of being subjected to torture (or other human rights violations amounting to persecution) – and adequately consider available evidence, particularly clinical evidence, in their decision-making. In particular, decision makers must not adopt opinions on clinical matters for which they are not qualified and must not dismiss clinical evidence on the basis of having made a prior negative credibility finding. Clinical evidence of past torture or ill-treatment is typically a strong indicator of a real risk of persecution or torture upon return. The lack of clinical evidence does not establish that a person has not been tortured or that the claim of a person alleging torture lacks credibility;

399.  Torture victims may have injuries that are substantially different from other forms of trauma. Although acute lesions may be characteristic of the injuries described, most lesions heal within weeks of torture, leaving no scars or, at the most, non-specific scars. This is often the case when tortures use techniques that prevent or limit detectable signs of injury. Blunt trauma is one of the most common modes of injury in torture and tends to cause mainly bruising and abrasions, which may heal without lasting physical evidence. Under such circumstances, the physical examination may be within normal limits, but this in no way negates allegations of torture. A detailed account of the person’s observations of acute lesions and the subsequent healing process often represents an important source of evidence in corroborating specific allegations of torture or ill-treatment;

-  Conclusions and recommendations

424.  Clinicians should formulate a clinic opinion on the possibility of torture or ill-treatment based on all relevant clinical evidence, including physical and psychological findings, historical information, photographic findings, diagnostic test results, knowledge of regional practices of torture, consultation reports etc., as stated in paragraphs 382 – 383 above and annex IV. The clinician’s opinion on the possibility of torture or ill-treatment should be expressed using the same levels of consistency as that used for interpreting findings: not consistent with, consistent with, highly consistent with, typical of and diagnostic of. Ultimately, it is the overall evaluation of all the clinical findings, and not the consistency of each lesion or symptom with a particular form of torture or ill-treatment, that is important in assessing allegations of torture or ill-treatment.

33.  Furthermore, in considering whether the Applicant’s claim of having been tortured as alleged which led to all these injuries and scars as shown in those photographs taken during his screening process before the Director, the Board was expected to apply high standards of fairness in accordance with the policy, as held to be necessary by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 when Li CJ observed as follows:

“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 violations 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. For example …

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. …”

34.  The guidance provided by UNHCR referred to above by the Court of Final Appeal is the Handbook on Procedures and Criteria for Determining Refugee Status (1979 re-edited 1992), which provides that while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner, and in some cases it may be relevant for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application, and that even if such independent research may not always be successful and there may be statements that are not susceptible of proof, but if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefits of the doubt: see paras 195 and 196 of the Handbook.

35.  The Handbook further provides that the requirement of evidence should not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself in, although allowance for such possible lack of evidence does not mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant (para 197), and that the examiner or decision-maker should in such circumstances do further in the fact–finding process as follows:

“198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded.” …”

36.  The Handbook then emphasizes that since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding, and that his judgement should not be influenced by the personal consideration that the applicant may not be a deserving case (para 202), as it elaborates:

“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence of some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

37.  In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated.

38.  As credibility findings have to be explained and supported by the evidence, and where the decision-maker finds a claim to lack of credibility, there must be a basis or foundation in the evidence, which derives from the requirement that such assessment must be individual, impartial, and objectively based on the examination of the statements of the applicant and the documents submitted in support of his claim, and speculation will occur when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculations, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s Report: ‘Beyond Proof: Credibility Assessment in EU Asylum System’, May 2013 at p41.

39.  It is also critical to note that the two-tier screening process under USM for the screening of non-refoulement claims on all the applicable grounds is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or to strive with zeal to identify indicators of lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and the decision taken objectively and impartially, as emphasized by the UNHCR Beyond Proof on the importance of Article 8(2)(a) of the Asylum Procedures Directive (“ASD”) at [37]:

“Article 8(2)(a) of APD requires Member States to ensure that application for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background or circumstances.”

40.  The UNHCR Beyond Proof also notes that the challenges of the credibility assessment in the asylum procedure on decision-making are often compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for international protection is examined, the amount of time that has elapsed between these facts and screening of the case, the psychology of the applicant and the interaction between him and the decision-maker are all relevant to the credibility assessment, as it elaborated at p31:

“The psychology of the applicant, the interviewer and, if different, the decision-maker, as well as the interactions between these persons are all relevant to eth credibility assessment. A wide-range factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions and behaviour, values, attitudes, perceptions of and responses to risk, and about how a truthful account should be presented. When providing statements, applicants are required to recall relevant past and present facts to substantiate their application. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

Interviewers and decision-makers, therefore, in addition to knowledge of the relevant law and of the country of origin, need to be aware of and to understand these factors that impact on the credibility assessment and to be informed by the substantial body of empirical scientific evidence that exists in these fields.”

41.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him, as stated in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015, at s 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

42.  In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected, and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant, as Keene LJ identified the dangers of a decision-maker being influenced by his own views on what is or is not plausible in approaching the issue of credibility, and that it is important that the decision-maker should seek to view a claimant’s account of events in the context of the conditions in the country from which the claimant came, as His Lordship observed at [25]:

“There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigrant judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – tin accordance with his concept of what a reasonable man would have done.’”

43.  Such views and approach have been adopted by the Hong Kong courts, and in ST v Betty Kwan [2014] 4 HKC 419 [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a non-refoulement protection claim, as Cheung CJHC (as he then was) elaborated at [43]:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. … As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a mean of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

44.  Henceforth, in assessing and making credibility findings in such claims, all the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants, and that the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: see Section 2.2.21 and 2.2.2 of the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004.

45.  In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt: see UNHCR Beyond Doubt at p50.

46.  Lastly, high standards of fairness must be observed by the decision-maker in all aspect of the assessment and determination of applications of this nature, as Li CJ elaborated in Prabahar as follows:

“43. The question in this appeal concerns the standard of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on the examination of all aspects relating to the decision in question: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

47.  In the Applicant’s case, Mr Ngan submits that the Adjudicator failed to apply properly or at all such principles in her assessment of the credibility of the Applicant’s claim by failing to make proper finding or at all on those scars of the Applicant as evidenced by the 21 photographs taken by the Immigration Department during the screening process of his torture claim, or to take proper account or at all of his mental status as evidenced by the 2014 psychological evaluation report as well as his complaints of lengthy delays in the processing of his claims or of such impact on his evidence given before the Board, or to properly apply the principle of the benefit of the doubt to the Applicant’s claim in view of the then general conditions of Congo on the basis of the relevant COI.

48.  Instead, Mr Ngan submits that the Adjudicator relied on relatively minor or peripheral matters to cast doubts on the Applicant’s credibility, including what she described as vague evasive and rehearsed evidence as to his training as an Aubevillois and involvement in fighting against the Ninjas in 1993 and the militias in the 1997 civil wars ([118] of Board’s Decision), or of what happened to his family or siblings in his escape into the forest (the Site) ([120] – [122] of Decision), or his inability to remember whether he had escaped by himself or with his family to the Site ([125] – [126]), or of his claim of Ninjas attack in 1992 when according to COI that it was in fact in 1993, that he was not sure whether he was recruited as a policeman or a soldier in 1992 or his role after the military training ([139] – [163]), or by relying on her own unfounded assumptions and subjective speculations in finding it incredible that the Cobras would bother to interrogate the Applicant and other detainees whether they were Aubevillois instead of just executing them giving the indiscriminating killings that were going on in the country ([214]), or that after being tortured for 2 weeks with little food that the Applicant and his fellow detainees would still be able to climb over the walls of the camp to make their escape ([217]), or that the Applicant’s cousin was willing to help him to leave the country while refusing to give him food or shelter in her home ([220]), and yet just bruised aside those evidence more relevant to the core of his claim as noted above.

49.  On the bases of these submissions of Mr Ngan, I agree that Grounds (1) and (3) are reasonably arguable per se for the Applicant’s intended challenge of the Board’s Decision, but as noted by the Adjudicator at [229] in the Decision, even if she did err in her assessment of the credibility of his claims of having been an Aubevillois and tortured by the Cobras, it may not assist or advance his case if there is indeed no real risk of him facing any risk of harm under any of the applicable grounds upon his return to Congo now or in the reasonably foreseeable future in view of the significant changes as to the political as well as the general and security situations and conditions in the country since he left in 2004 as found by the Adjudicator on the basis of the relevant COI, which thus brings me to Ground (2) of the Applicant’s intended application.

Ground (2) : The COI Ground

50.  Mr Ngan submits that the Board erred in the assessment of the relevant country conditions of Congo since the Applicant left in 2004, of which the Adjudicator made various findings based on COI which Mr Ngan summarized as follows:

(a)  The 1997 civil war had ended some 20 years ago ([230-232] of Decision);

(b)  Amnesties had been granted to opposition militiamen and with peace accords and arrangements made between the government and various opposition groups;

(c)  In view of the lengthy passage of time and the significant changes within the country as well as his own profile and past incidents that the Applicant would not face any real risk of harm upon his return to Congo; and

(d)  Despite corruption and deficiencies in the system, the civilian authorities are generally able to maintain effective control over the security forces that there is no basis for finding that the Applicant will face a real risk of harm personally for reasons relating to the general or security situation in Congo.

51.  Mr Ngan submits that in assessing the relevant country condition, the Board failed to consider the most updated situation in Congo, including those COI provided to the Board by way of the Applicant’s closing submissions dated 8 April 2019 with the following materials and information:

(a)  The travel advice issued by the UK government and the Canadian embassy warning their citizens about travelling to Congo;

(b)  The Ninjas continued with their military actions against the Sassou government and that political and security situation in Congo have continued to deteriorate, while the government committed bombardment of its own citizens, forcing displacements of large groups of people, with arbitrary arrests committed by the army, the police and unidentified armed groups, and that there were at least 130 political detainees in the country’s jails where conditions were inhuman as evidenced by the death of opponent Marcel N’Tsourou in February 2017 while in custody in capital Brazzaville;

(c)  Journalists were arrested in 2015 over an article accusing President Sassou of using mercenaries to attack his political opponents;

(d)  The Sassou government took a very hard line against political opponents such as the Ninjas but with indiscriminating killing and bombing of civilians in their scorched-earth attacks, with young men arrested and accused of being Ninjas and with 110 cases documented by the UN of rape by “men in uniform”; and

(e)  In 2019, a former French intelligence officer linked to a plot to kill General Mbaou was killed shortly before an upcoming proceedings relating to the plot.

52.  Mr Ngan submits that the Board failed to consider any of these relevant COI in its assessment of the latest country condition before reaching its conclusion that it would be safe for the Applicant to return to Congo or that he would not be at any risk even if he indeed had been an Aubevillois or was involved in fighting for the regime of former President Lissouba.

53.  In his supplementary submissions Mr Ngan has identified the list of materials referred to in the Applicant’s appeal before the Board and attached to the Closing Note submitted by his lawyer to the Board on his behalf and contained in the Bundle of Documents for the present application at BOD5/10/1037 as follows:

“1. ‘Profile of Ex-Prime Minister Bernard Kolelas’, the New Humanitarian, dated 9 December 2005;

2. ‘The Dirty Politics of Africa: Congo (Brazzaville) (Part II)’ by Theodore T. Hodge, dated 30 January 2003;

3. ‘Small Arms Availability, Trade and Impacts in the Republic of Congo’, Small Arms Survey Special Report, by Spyros Demetrios, Roberty Muggah and Iran Biddle;

4. Congo Travel Advice, Gov UK updated on 11 January 2019;

5. Republic of Congo (Brazzaville) Travel Vaccines and Advice, accessed 9 March 2019;

6. ‘Congo-Brazzaville. Pool rebels asphyxiate Brazzaville before the elections.’ South World, News June 2017;

7. ‘It’s not good to criticize Congo-Brazzaville’s regime’, published by Reporters Without Borders on 22 March 2017;

8. ‘The Political Militia in Brazzaville’, Cambridge University Press, by Remy Bazenguiss-Ganga, accessed 7 March 2019;

9. ‘Updated: Congo-Brazzaville’s hidden war’, Soumouna, 18 June 2018;

10. ‘French Spy found dead in Alps after being accused of plot to assassinate exiled Congolese politician’, Tom Barnes, Independent, 28 March 2019.”

54.  In his Closing Note the Applicant at [18] specifically stated that he relied on all those materials provided in the list (see BOD5/10/1036), yet the Adjudicator somehow only referred to Documents Nos. 4 and 5 in the Decision as follows:

“244. In the closing submissions for the Applicant, information regarding Congo Travel advice issued by the UK Government in 2019 and Travel vaccines and advice from the Canadian Embassy were enclosed. I do not consider this information establishes that the Applicant will face a real risk of persecution, torture, CIDTP or arbitrary deprivation of life if he were to return home now or in the reasonably foreseeable future.”

55.  While the Board is certainly entitled to properly differentiate the relevancy of materials submitted by a claimant without having to refer to every single one of them in its assessment of a claim, but in the Applicant’s case the Board just referred only to the 2 items of travel advices to travelers to Congo of the risk of the corona virus in 2019, while ignoring the rest of the materials which appeared to be much more relevant to the Applicant’s claim and situation before arriving at its finding that he would not face any of the applicable risks upon his return to Congo.

56.  Furthermore, it is noted that at the beginning of the Applicant’s appeal hearing before the Board, the Adjudicator informed the parties that she had read all the materials provided by the parties as well as those contained in the hearing bundle prepared and provided by the Director including those COI listed in the Director’s decision, which were primarily prior to 2018 (BOD5/8/197 204), but of which the Adjudicator stated of no further obligation to provide the Applicant with research more generally (see [85] – [90] of Board’s Decision).

57.  As such, it seems it me that the Board had relied primarily on COI that were available prior to only 2018 in its assessment of the conditions and situations in Congo, and failed to properly assess or evaluate adequately or at all the more relevantly updated COI in its decision or at least those relied on by the Applicant in his closing submissions before the Board before arriving at its assessment that the Applicant would not face any of the applicable risks now or in the foreseeable future upon his return to Congo, and hence Ground (2) is in my view reasonably arguable for the Applicant’s intended challenge, and consequentially so are Grounds (1) and (3).

Conclusion

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 on his proposed grounds as stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

59.  Accordingly I grant leave to the Applicant to do so, and direct that he shall file and issue his originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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