NMW v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2503/2020

[2022] HKCFI 3463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2503 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant’s counsel, Mr. Geoffrey Yeung in open court;

 1.   The application for leave to apply for Judicial Review of the Board’s Decision dated 29 September 2020 be refused;

 2.   The Order of the Honourable Mr. Justice Chow dated 22 December 2020 granting anonymity to the Applicant be lifted forthwith;

 3.   Costs of this application and the hearing be in the cause of the proceedings; and

 4.   The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 September 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is represented by Geoffrey Yeung, Counsel on the instructions of Messrs. Daly & Associates designated by the Director of Legal Aid.

The applicant

3.  The applicant is a national of Cameroon. On 14 May 2006, he attempted to enter Hong Kong on the strength of a Botswanian passport, which the immigration officer suspected to be a forgery and he was therefore refused entry. During the period of repatriation arrangement, the Embassy of the Republic of Botswana in Beijing confirmed that the passport was bio-data page substitute and it was not issued to the applicant, but to another person who had reported loss. His application to the UNHCR for refugee claim was refused. By written representation dated 17 August 2006, he lodged a non-refoulement claim on BOR 3 risk as described in paragraph 6 below. On 22 August 2006, the Government Laboratory reported that the applicant’s Botswanian passport was a forgery. His non-refoulement claim was processed under the Unified Screen Mechanism, which commenced operation on 3 March 2014.

4.  According to the applicant, if refouled, he would be harmed or killed by the Cameroonian authority because he was a member of the Southern Cameroon National Council (the “SCNC”), which is an organization seeking restoration of the independence for Southern Cameroon. Besides, he feared that he would be ill-treated by the Cameroon authority as he claimed to have mortally wounded a policeman and was arrested by the police in 2003. Details of his claim are set out in the Director’s Decision dated 26 October 2017 (the “Director’s Decision”) and at §8 to §35 of the Board’s Decision.

5.  Counsel for the applicant has, in his skeleton submissions, set out the salient facts, upon which the applicant will rely for this application. I shall therefore set out the applicant’s alleged facts below.

(1)  The applicant is a Cameroon national aged 39 at the time of the Board’s Decision. His mother tongue is English. His mother is from Cameroon and his father is from Botswana.

(2)  The applicant’s mother, Mary Williams (formerly known as Remi Nambeke) (“Mrs. Williams”), was an active member of the SCNC. She changed her name to an English-sounding name to signal support of the SCNC. The SCNC seeks the separation of southern Cameroon for the northern, French-speaking part of the country and is classed by the Cameroon government as an illegal organization while its meetings are frequently interrupted and members are arrested by security forces. Before her death, Mrs. Williams hosted secret SCNC meetings in her home regularly.

(3)  The applicant became a member of the SCNC when he was 18. His involvement extended to keeping records, maintaining codes, as well as attending and assisting to arrange SCNC activities. As a result of his activism he was arrested three times prior to the Incident particularized below, during which he was denied food, assaulted and tortured. (The Board held that the applicant failed to mention these previous arrests prior to the oral hearing – which the applicant denies.)

(4)  On around 7 January 2003, 4 policemen entered Mrs. Williams’ house at around 5 or 6 pm, and attacked and brutally raped her. She died from her injuries around 10 days later (“the Incident”). The applicant believes the attack was due to suspicion that the SCNC was responsible for the arson of a government building, but neither he nor his mother had any role in it.

(5)  During the Incident, the applicant tried to intervene in order to save his mother, in the course of which he was punched and beaten, leaving him with injuries and a scar, while one policeman was mortally wounded. (Importantly here, the Board took the view that the applicant admitted to expressly killing the policeman in his First Questionnaire and Records of Interviews, while as will be submitted below, the applicant never made such a claim.)

(6)  After the Incident, the applicant was arrested and detained by the police. He was not given any food or water. The police also forced the applicant to put his hands in a bucket of filth full of faeces and urine.

(7)  Three days later, a Roman Catholic priest (“the First Priest”), who the applicant believed to have some connection with the SCNC, helped him to escape from the police station. About a week later, the priest took the applicant to meet with another priest (“the Second Priest”). The Second Priest took the applicant to a seaport and spoke to four people there, including a gendarme (an officer in the Cameroonian Military). Upon the instructions of the Second Priest, the applicant followed the four people to board a ship without knowing the destination.

(8)  The destination of the ship turned out to be South Africa. During the voyage, the applicant befriended one Mr. M, who said he had an “influential aunt” Ms. G in Botswana, and offered to help him to travel to Botswana to find his relatives. Upon arrival in Botswana, the applicant initially received medical treatment, but was then kept under duress as a sex slave of Ms. G from 2003 to 2006.

(9)  Eventually in April 2006, a daughter of Ms. G took pity on the applicant and helped him escape, arranging a forged Botswana passport for him.

(10)  &The applicant said he only disclosed for the first time what had happened to him in Botswana to the Board at the appeal hearing, because it was “embarrassing and shameful”.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the main issue of credibility of the applicant’s evidence on the facts in support of his claim [18] – [27]; state protection being available to him [28] – [33] and internal relocation to various towns in the Southern and Northwest of Cameroon being options open to him [34] – [43].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  The hearing before the Board took 3 days: 29 October 2018, 29 November 2018 (Directions Hearing) and 18 March 2019. The applicant and the Director were legally represented respectively.

9.  Having heard the evidence and considered the legal submissions from the respective parties, the Board passed its decision in paragraph 2 of the Board’s Decision:

“2. My decision is the Appellant has not substantiated his claim for non-refoulement protection. These are my reasons.”

10.  The Board set out its approach that the hearing was by way of a rehearing in accordance with AM v Director of Immigration & Anor HCAL 102/2012. As can be seen from counsel’s skeleton submissions, the main issues are:

“has the applicant provided credible claims of fear of harm due to:

i.    his and/or his family members’ political opinion; and/or

ii.   being an English speaker; and/or

iii.  is role in the death of a police officer?”

11.  Having set out the background of the case [38], the Board proceeded to consider the evidence. At paragraph 46, it said:

“I make the observation here that I am not conducting judicial review of the Decision [the Director’s Decision]. I am making my own decision on the basis of the relevant evidence and submissions before me. As noted above, my decision will supersede the Decision [the Director’s Decision].”

12.  Having considered the applicant’s evidence, the Board at paragraph 126 said:

“For reason of multiple, material inconsistences in the Appellant’s evidence regarding his claims of past harm in Cameroon as well as his implausible evidence and his non-persuasive explanations, I find the Appellant was not a credible witness.”

The Board’s finding of the facts

13.  The Board then made the finding of the facts in paragraph 127, which is a long paragraph. However, as much of the argument will focus on the treatment of the evidence for the finding of the facts, it is important to set out the findings in full below:

“127. I accept the Appellant is from Cameroon. I accept his mother died from physical injuries. But I reject he obtained the death certificate of his mother through a church by using a SCNC codename. I do not accept that the Appellant or his mother were activists, members or supporters of SCNC. I reject his mother held any SCNC meetings in their family home. I reject any SCNC documents were in the Appellant’s family home. I reject the Appellant did any work or participated in any SCNC activities. I reject the Appellant have ever been arrested or tortured by the police, neither one time, nor four times. I reject the death of the Appellant’s mother was injuries incurred in the attack. I reject any police officers attacked or raped the Appellant’s mother and it follows that I reject the Appellant witnessed any police officer attack or rape his mother. It follows too that I reject the Appellant or anyone else fatally wounded a police officer when intervening to stop any attack or rape against the Appellant’s mother. I reject too that the Appellant or anyone else was arrested for the fatally wounding any police officer. I accept the Appellant has scars, but I reject he incurred those scars after the claimed attack and rape of his mother. I reject the Applicant escaped from prison with the assistance of a priest. I reject the Appellant departed Cameroon via ship to South Africa with the assistance of a second priest. I reject the Cameroonian authorities have harassed or threatened the Appellant’s relatives in Cameroon after he left that country. I accept the Appellant has had contact with Mr. SC and the authors of the SCNC letters, but I reject he did that via any codename. And for the reasons expressed above, I place no weight on those documents. I reject if the Appellant is refouled to Cameroon, he will participate in any SCNC activities, support the SCNC, become a member of SCNC or be an activist for SCNC. Once more, I consider the Appellant has fabricated these claims of past harm and of political activism in Cameroon, so as to create a basis upon which to apply for non-refoulement protection.”

The Board’s reasons for the finding of the facts

14.  The Board’s reasons for its findings are contained in paragraph 73 to paragraph 150 of the Board’s Decision. I shall focus on the relevant parts of his reasons in relation to the applicant’s credibility.

15.  First of all, the Board reminded itself of the principles for the assessment of the case such as the high standard of fairness; hearsay evidence and the benefit of doubt to be given to the applicant and section 37ZD of the Ordinance [75]. The applicant has raised no dispute over the approach.

The Botswana’s claim

16.  The Board noticed that at the first hearing, the applicant said he wished to make new claims as to past harm he experienced in Botswana (“the new claims”) [99]. But he did not raise the new claims before the Director [78]. The Board had therefore taken into consideration the applicant’s evidence in support of the new claims for the general assessment of his credibility of his evidence. For the new claims, the Board had taken into account the applicant’s evidence that his father’s place of birth which read to be “Limbola”, which the applicant could not locate; [84]; that the Botswana Embassy in Beijing verified the Botswana passport, which the applicant attempted to use to enter Hong Kong had been fraudulently altered; that at the first hearing, the applicant was asked if he knew the Botswana passport was genuine or not, but he declined to answer any question about that issue [88]; that the applicant had never provided a credible explanation as to how he acquired that passport [94].

17.  The Board had also cast doubts over his evidence relating to his journey to Botswana and his stay there for 3 years as a sex slave to Ms. G and he was assisted by Mr. G’s daughter, who arranged the forged Botswana passport for him. The Board was not satisfied with the applicant’s explanations to the following issues:

(1)  He could not tell the Board if the ship called at any ports from when he boarded until he disembarked in Durban by explaining that he was not allowed to leave the cabin. The Board took the view that he should have been aware the ship had stopped given the engines would have ceased and no sensation of the rise and fall of the ship on the waves of an open sea [101].

(2)  How he was able to get through South African immigration control on arrival and how he passed through the border control between South Africa and Botswana and his explanation being that Mr. M was a people smuggler experienced in doing such things as Mr. M sold him to Ms G [102].

(3)  That he was held as a sex slave for over 2 years, kept in a basement, yet somehow also impregnated one of Ms G’s maids, his explanation being he slept with the maid only twice and that was on occasions Ms G and the daughter were both out of the house [103].

(4)  Why he did not raise this Botswana claims prior to the first hearing, to which he said that he was too ashamed to discuss those claims and the immigration officer never asked him about Botswana. The Board noticed that the applicant refused to answer any questions about Botswana during any of the interviews. The applicant said that the immigration officer did not assist him. But he was legally represented since the time of the Questionnaire in May 2012 [104].

(5)  The explanation for him to stay in Botswana for 3 years would be crucial for his general credibility of his evidence on the issue of what happened in Cameroon and how he had left Cameroon. The applicant said he had nothing to explain and there was no reason to tell anyone the Botswana claims [105].

18.  It is for those reasons above the Board rejected the Botswana claims and considered that the applicant fabricated the Botswana claims for the purpose of strengthening his application for non-refoulement protection [106].

The Cameroon’s claim

19.  The Board first noted that the applicant has claimed he will face harm from the Cameroonian authorities because of his SCNC activism; his role of killing the police officer, and/or his being an Anglophile. His legal representative has also raised other claims, that the applicant faces a real risk of harm from Boko Haram as well as due to prison conditions in Cameroon [108].

20.  The Board concluded that the applicant’s evidence was incredible because the applicant was unable to give satisfactory explanations for the following inconsistencies and deficiency in his evidence.

(1)  The applicant did not mention that he was arrested and detained a total of 4 times due to his role as an activist with SCNC before the first hearing before the Board. The applicant’s explanations that he had already referred to the other 3 incidents because he mentioned “all that follow” in the first Questionnaire; that in second SCNC letter in support of his case, it referred to his being arrested 4 times and he considered it was unnecessary for him to provide information about those 3 arrests and that he had made a mistake not to include those 3 arrests [111] – [113].

(2)  The applicant, through his legal representative, obtained an adjournment and then continued to explain the omission of the 3 arrests. However, the Board was not satisfied with his explanation that he was waiting for his lawyers to ask him more questions and his mix-up of the evidence [116]-[118].

(3)  The applicant’s account of how the first priest helped him escape from police custody is vague [119].

(4)  The applicant’s inconsistent evidence regarding the killing of the police officer and the number of people arrested for that weigh heavily against accepting his claims as credible [121]. In his questionnaire to the Director, he mentioned he had killed the police officer whereas at his first hearing, he denied having killed the police officer.

(5)  The Board then considered the SCNC letters and the affidavit in support of the applicant’s claim. The two SCNC letters are respectively from the chairman and vice-chairman of SCNC. The affidavit is from a journalist. The Board considered that the contents of the SCNC letters and the affidavit are inconsistent with the applicant’s evidence in certain material aspects. It therefore attached no weight to the SCNC letters and the affidavit [125].

(6)  Looking at the evidence of the applicant’s own statements and oral evidence at the hearings and the documentary evidence, the Board found that the applicant is not a creditable witness [126].

(7)  On the Anglophile issue, the Board accepts that the applicant is an Anglophile. However, having considered the COI, the Board found that although there is social discrimination and harassment generally, there is no physical or psychological harm that meet the minimum threshold of BOR 3 risk to the applicant [133] – [135].

(8)  On the issue of Boko Haram, which was raised by the duty lawyer acting on behalf of the applicant, the Board referred to the COI and found that Boko Haram does not target Anglophile Cameroonians in the southern parts of Cameroon, although attacks can occur anywhere within Cameroon. On this basis, the Board considers there is only a remote or speculative risk and therefore not a real risk the applicant will face proscribed harm from Boko Haram if he returns to Cameroon [136] – [139].

21.  Based upon its finding that the applicant does not face a real risk of proscribed harm under any of the applicable grounds if he returns to Cameroon, the Board considers that it is not necessary to make any findings in relation to internal relocation [140].

Application for leave to apply for judicial review of the Board’s Decision

22.  The applicant has, pursuant to Order dated 8 September 2022, amended Form 86 for leave to apply for judicial review of the Board’s Decision.

23.  In his affirmation in support of his application, the applicant relies upon 4 grounds in the amended Form 86.

(1)  The adjudicator has erred in finding that there were inconsistencies in the applicant’s testimony at the hearing and his primary evidence, which was based on errors of fact and/or was irrational upon anxious scrutiny under high standards of fairness.

(2)  The adjudicator’s misdirection on law and/or irrationality in unduly focusing on peripheral or irrelevant matters to find the applicant incredible [uncredible] and failing to consider evidence that corroborates with the applicant’s account.

(3)  The adjudicator’s misdirection on law and/or irrationality in failing to adopt an evidence-based credibility assessment and instead proceeding on his personal assumption and conjectures.

(4)  The adjudicator further erred in law and in fact in failing to take into account corroborative evidence such as the affidavits and the letters as well as the relevant COI before rejecting the applicant’s claim.

DISCUSSION

The general legal principles

24.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25.  The applicant relies on RM v Muttrie (unrep., HCAL 166/2015, 3 March 2016) at §27:

“In the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar, and (c) whether the substantive decision satisfied the enhanced Wednesbury test.”

Pausing here, there has to be a cautionary note for the above citation. The Court assumes no inquisitorial duty in the exercise of its duty. It is incumbent upon the applicant to raise the grounds before the court. This was held by the Court of Appeal in Soni Pratik [2021] HKCA 1702, Hon Barma JA & Lisa Wong J:

“18. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163….”

26.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §45.

27.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

28.  The Court of Appeal in Re JKF (unrep., CACV 103/2014, 25 November 2014) at §4:

“When the primary decision makers did not conduct the necessary assessment or did not make all the necessary inquiry relevant to such assessment, or conduct an oral hearing which the case required, the court should not readily place itself in their positions to undertake such exercise on its own. It is only in very clear cases that the court should reject an application for judicial review on the basis that the final outcome is inevitable…”

29.  I shall now proceed to consider the respective grounds below.

Ground 1

30.  The applicant submits that his evidence in relation to the incident of killing of the police officer when his mother was attacked by the police was in his Questionnaire, the first Questionnaire, at the first hearing’s oral evidence and the affidavits evidence.

31.  In the Board’s Decision, the Board found that at the first hearing, the applicant denied he killed the police officer with a knife. He added that other people were arrested for the killing. In the Questionnaire, he clearly admitted he grabbed a knife and fought with the police resulting in a fatal wound to one police officer. In the first Questionnaire, he said that he intervened in the attack on his mother, during which, a police officer was fatally wounded. The SCF makes no account of the attack or of the killing. None of the earlier accounts of the applicant refer to others being arrested for the killing [121] – [122]. At [125], the Board further said, “But what causes me the most concern regarding the SCNC letters and the Affidavits is that the contents of those letters are (as highlighted above) inconsistent with the Appellant’s own claims in several material aspects, not the least of which is the number of times he was arrested and tortured….”

32.  The applicant argues that in the applicant’s two Questionnaires, he did not admit that he killed the police officer or there may be ambiguity in his statement, which should be investigated by the Board. On literal reading of the Questionnaires, I find that it is reasonable for the Board to come to its conclusion that the applicant admitted he killed the police officer when his mother was attacked. The adjudicator had heard the evidence of the applicant at the hearing and considered the submissions of the respective legal representatives. He is entitled to come to his conclusion after considering all the evidence and submissions. Ground 1 fails.

Ground 2

33.  The applicant has raised two issues in support of this ground, namely, (1) the Board has taken into account and/or put undue weight on irrelevant and/or periphery details and (2) the Board has not provided any or any adequate reasons as to why such peripheral or even irrelevant matter could displace the applicant’s credibility in relation to the entire claim.

34.  For the first issue, the applicant sets out the specifics below:

(1)  His account of how the first priest managed to help him escape police custody was vague, [119 of the Board’s Decision].

(2)  He failed to mention that he had been arrested 3 times prior to the Incident in the Questionnaire, [116 of the Board’s Decision].

(3)  The periods of detention for the first 3 arrests he recounted in the first and second hearing were “markedly different”, [116 of the Board’s Decision].

(4)  His account as to how he travelled to Botswana was “vague” and his account of what happened to him in Botswana was “implausible”, [101-106 of the Board’s Decision].

(5)  Whether he was the one who killed the police officer during the Incident or not, [120-121 of the Board’s Decision].

35.  Counsel for the applicant submits that on the basis of these peripheral matters, the adjudicator refused to accept almost every part of the applicant’s account. He went so far as to refuse to even accept that the applicant or his mother were activists, members or supporters of SCNC. The applicant further submits that it is entirely unclear from the Board’s Decision how these peripheral inconsistencies (even if they were inconsistencies) could call into question something as core to the applicant’s claim. The applicant has cited relevant authorities to support his argument that the Board should not place undue weight to irrelevant material or material of minor significance in relation to the core claim to dismiss the applicant’s appeal. The applicant submits:

“79. In the present case, the Appellant’s central claim premises on the threats from Cameroon government on account of his membership of SCNC, political views and participation as well his involvement in the Incident which resulted in the killing of a police officer… … Amongst these, the Appellant’s membership in SCNC and degree of involvement in SCNC are arguably most central to his claim, given the Board’s acceptance that at least “active members” of SCNC are targeted for harm by Cameroonian authorities and that such harm could involve harm so serious as to amount to Proscribed Harm (§133 of the Board’s Decision) …”

36.  It is important to review the bases on which the applicant relies in support of his claim. According to the Board’s Decision, the following evidence was submitted to the Board by the applicant:

(1)  the applicant’s own statement together with the exhibits, one of which is his membership card of SCNC;

(2)  the applicant’s evidence to the Director and to the Board;

(3)  the SCNC letter from Mr. Sylvester Taku, the Chairman of SCNC-Southern Zone;

(4)  the SCNC letter from Mr. Acha Thomas Tifang, Vice Chairman SCNC-Memi County;

(5)  the Affidavits of Mr. Samba Churchill Chifu.

37.  Specific (4) under paragraph 36 is the evidence in relation to the Botswana claims, which was ultimately dropped. But the applicant made the application to add this new claim before the Board [21]. The Board is therefore bound to consider his evidence in relation to this claim. The Board has explained why it placed weight on the Botswana claims at [107]:

“Albeit I reject the Appellant is a citizen of Botswana and cannot be refouled to that country. He did make claims for non-refoulement protection against Botswana as a Risk Country during the first hearing. For the sake of completeness, I find the Appellant has provided no credible evidence of past harm in Botswana. There is no real risk to the Appellant of Proscribed Harm under any Applicable Ground in Botswana.”

38.  The other Grounds under paragraph 36 are his story of what happened in Cameroon. In asylum cases, usually it is the applicant who supplies evidence in support of his case, the burden of proof being on him. The Director or the Board will not be in a position to put up any evidence to challenge the facts alleged by the applicant. They have to assess the applicant’s evidence, applying the high standards of fairness, in order to find the facts of the case. The assessment will inevitably depend on, apart from the applicant’s statement, other evidence in support of the applicant’s case and the quality of the evidence as a whole. In case of inconsistencies or discrepancies in the evidence, the Board has to consider the explanation given by the applicant, apply the relevant statutory provisions and the case law in relation to the credibility of his evidence as discussed below and make its decisions accordingly.

39.  The law imposes a burden on the applicant to put forth true and reliable evidence or materials in support of his case. Section 37ZA of the Ordinance imposes a duty on the applicant to provide information to the Director and the Board.[1] Section 37ZD provides factors that may damage the claimant’s credibility such as:

(2) Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

(a) the production of a false document as proof of the claimant’s identity;

40.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

“19. Secondly … The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

20. … In short, high standards of fairness are required because to the claimant, “life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved”. Such high standards of fairness require that the torture claimant be given “every reasonable opportunity to establish his claim”: para 51.”

41.  It seems clear that the Board considered those grounds in relation to the Cameroon story for assessing the quality of the applicant’s evidence in order to determine its credibility. They are not the periphery matters, but are part of his factual story in support of his claim. The Board had given every opportunity to the applicant’s duty lawyer to establish the applicant’s claim. The Board’s conclusion was drawn from the evaluation of the evidence. Having considered the applicant’s statement, his evidence to the Director and to the Board, the affidavits’ evidence and the inconsistencies of which the applicant was unable to provide satisfactory explanations, the Board came to its conclusion that the applicant’s evidence was not credible. It attached no weight to the applicant’s statement, together with the exhibit of his membership card of SCNC, the Affidavits’ evidence and the journalist’s evidence which said that he was a member of SCNC and supported the Incident.

42.  As analyzed above, I do not accept that the Board has not provided adequate reasons for its decision. Therefore, Ground 2 fails

Ground 3

43.  The applicant submits that even if the applicant’s account of his voyage from Cameroon to Botswana and his experience in Botswana are relevant, to the applicant’s central claim, the adjudicator wrongly relied on his own speculation and assumption in finding the applicant’s account unreliable.

44.  The applicant relies upon the authority of KM & Ors v Torture Claims Appeal Board [2020] 3 HKC 608, DHCJ Bruno Chan. This decision is mainly to alert the decision-maker to exercise care against the dangers of adopting personal assumptions, conjecture or speculations and the use of common sense for the assessment of the facts of the case. The decision-maker should not apply his subjective views and opinions in place of objective evidence in the assessment of the credibility of the evidence. I accept that caution must be exercised for the assessment of the evidence along the lines above. But it is inevitable that the decision-maker will apply common sense to the alleged facts of the case. To forbid common sense is not practicable; just as to tell the decision-maker to consider without thinking, which defies logics. The crux of the question is to determine whether the alleged facts to be determined is within the realm of common sense. If they are, then it is reasonable to apply common sense for assessment of the evidence. Local custom may be an exception. The Court of Appeal in ST v Betty Kwan and The Secretary for Security and The Director of Immigration [2014] 4 HKLRD 277 held:

“43. … … 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. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

45.  I shall discuss the following issues raised by the applicant.

(1)  “It is not credible that the Applicant could not tell if the ship has called at any ports from when he boarded until he disembarked in Durban. This is because the Adjudicator believed that when a ship calls at a port, it would stop moving and there would be “no sensation of the rise and fall of the ship on the waves of an open sea.”

The applicant comments that it is not unreasonable for the applicant not sensing the difference between a sailing ship from a ship at a port. This comment has not taken into the fact given by the Board that for a sailing ship, the engine was operating whereas a ship at a port, the engine has stopped. This should be sensed by the applicant. Also, the movement of the ship in an open sea is different from the movement of a ship at a port. It is not Wednesbury unreasonable for the Board to make this finding as this is within the common sense ambit.

(2)  “It was also implausible that the Applicant could arrive at South Africa and travel from South Africa to Botswana with the assistance of Mr. M without going through immigration control of South Africa. The Adjudicator was of the opinion that “in [his] experience, South Africa is a country where the rule of law is stronger.”

The applicant complains that there is nothing implausible about this fact and the adjudicator had applied his personal knowledge to assess the situation. I agree that the adjudicator has applied his personal knowledge to the immigration control of South Africa, which he considered that it is implausible for the applicant to pass without going through the immigration. I consider that there is nothing amiss for the adjudicator to use his personal experience to the immigration control, which is an objective fact. There is nothing to prohibit the adjudicator to rely upon such experience. He may even rely upon the COI, which was compiled by other jurisdictions. I do not accept this assessment of the evidence is prejudicial to the applicant.

(3)  “The Adjudicator did not accept that Mr. M could be a trafficker because it is implausible that the Applicant would have the fortune of coming across an experienced, well-connected trafficker on the voyage.”

The applicant argues that the adjudicator has not consulted the COI before coming to this decision. There is nothing implausible about it. In my view, even if the adjudicator had consulted the COI and found that human trafficking was prevalent in Botswana, that does not follow that the applicant should find an experienced human trafficker, who could help him enter Botswana without being subjected to the immigration control. Considering the evidence in the round: that the applicant did not raise his Botswana claims before the immigration officer, but only at the hearing before the Board; that he had not given satisfactory explanation to the Board; that he had used a forged passport for his entry in Hong Kong, it is not unreasonable for the adjudicator to have suspicion on his evidence of this nature.

(4)  “It was implausible that the Applicant could have impregnated Ms G’s maid despite being held as a sex slave in her basement for 2 years.”

The applicant argues that it is clearly possible for the applicant to impregnate a housemaid while being kept in the house as a sex slave. I agree that on a biological perspective, this is possible. However, when judged within the context of the case where the Board disbelieved the Botswana incidents, it is quite clear to me that what the adjudicator was referring to was the story of him being detained as a sex slave in Botswana for about 3 years, not within the biological context. I will not say that it is Wednesbury unreasonable for the Board to make such finding. However, even if the Board is faulted for making unfounded speculation on this issue, this issue, taken separately or accumulatively together with other evidence, will not affect the Board’s Decision.

(5)  “The failure of the Applicant to mention his experience of being a sex slave in Botswana was not because he was too ashamed to discuss those claims.”

The applicant argues that there is nothing incredible about it. To the contrary, this is entirely to be expected. The nature of this issue may be embarrassing or even shameful for the applicant. However, the issue in question is that the applicant raised this issue at the hearing before the Board, the nature of it being the same, he was unable to persuade the adjudicator as to why he did not bring up this issue before the immigration officer. It is this aspect that the adjudicator finds incredible. I do not consider that the adjudicator is unreasonable to make this finding.

Ground 4

46.  The applicant has placed much prominence on this ground, saying that the Board had committed fundamental errors dealing with the corroborative evidence. In the conclusion of counsel’s skeleton submissions, the applicant submits:

“59. In the premises, in deciding to attach no weight to the Affidavits and Letters, the Board failed to take into consideration important corroborative documentary evidence adduced by the Applicant, which constituted a misdirection of law and/or irrational application of the law. Further or alternatively, the Board failed to give any or any adequate reasons for dismissing such relevant evidence.”

47.  The applicant’s arguments discussed below turn on the legal issues of corroborative evidence, credibility and adequate reasons. I shall set out the relevant legal principles below.

The relevant legal principles on evidence

48.  It is accepted that in assessing the credibility of the applicant’s claim for non-refoulement protection, the Board must consider all the relevant evidence available before it holistically, such evidence includes the document or corroborative evidence adduced by the applicant or gathered by the determining authority including the Country of Origin Information (“COI”). The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:

“176. …the Court should assess the risk at the time of the proceedings, taking account of information … in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.”

49.  In order to make a “full and up-to-date assessment” of the current situation, it is accepted that the evidence of the case must be considered “in the round”, KM v Torture Claims Appeal Board [2020] 3 HKC 608 [LA/9] at §38.

The legal principles on adequate reasons

50.  Counsel submitted that the Board’s duty to give adequate reasons should be as explained in RM v Gerard Paul Muttrie, Esq and Director of Immigraton unrep. HCAL 166/2015, 3 March 2016 at §34:

“… the Adjudicator was also required to employ high standards of fairness and the most anxious scrutiny in his fact-finding exercise, and in so doing he should look at all the material evidence, including COI materials, and carry out a proper analysis. The Adjudicator should also provide adequate reasons in his decisions to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant.”

51.  This Court, for the reasons below, does not accept the decision of the RM case as generally applicable legal principles for adequate reasons to be given by the Board.

52.  The Court of Final Appeal in Oriental Daily Publisher Limited v Commissioner for Television and Entertainment Licensing Authority (1997-98) I HKCFAR 279, 25 November 1998, pages 16-17

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question…. … First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered…. … Secondly, … … why the Tribunal has come to such conclusions…. … Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly. … … Fourthly, where a point of law is raised the point has to be decided… … Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”

53.  Also, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. … (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

54.  The RM judgment did not refer to the Court of Final Appeal cases preceding it and has not discussed why it should not follow the higher authorities’ rulings. The RM’s approach may be appropriate for the particular case before the learned judge. However, I consider that the decision should not be generalized as the standard formula for every case or cases of the same kind because of its lack of flexibility to cope with multifaceted and varying situations of the cases. Mechanical application of this approach will not be conducive to proper analysis of the cases or for the clear understanding of the issues in question. No doubt, the Court of Final Appeal’s decisions have the overriding authority.

55.  This Court will adopt the Court of Final Appeal’s decisions for this case.

The legal principles on credibility

56.  I accept that even if the applicant is found to have lied, the Board should be careful in its treatment of lies as to their strength in relation to the overall credibility of the evidence. Ultimate, it is a matter of discretion for the adjudicator as the court in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 [LA/11] held:

“32. ... Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. …

33. … the significance of lies will vary from case to case. … It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

57.  It is also relevant to note that the Ordinance has provided factors, which the Board should take into account when determining the claimant’s credibility.

58.  Section 37ZA provides that the claimant has a duty to provide all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document support those facts and to comply with the requirements under the Ordinance.

59.  Section 37ZD provides, insofar as are relevant for this matter:

(1)  n considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(a)  any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(i)    conceal information;

(ii)   mislead; or

(iii)  obstruct or delay the handling or determination of the claimant’s torture claim;

(b)  a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);

(2)  Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

(a)  the production of a false document as proof of the claimant’s identity;

(b)  a failure, without reasonable excuse, to produce a document as proof of the claimant’s identity on request by an immigration officer;

(d)  a failure, without reasonable excuse, to—

(ii)  provide information or answer any question put by an immigration officer at such an interview; (Amended 7 of 2021 s. 13)

(3)  This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.

60.  The above statutory provisions do not provide the starting point for assessment of credibility; the starting point must be the evidence before the Board. However, the Board is entitled to and should consider the factors for the determination of the claimant’s credibility in the absence of other evidence to support the facts of the claimant’s claim or where the Director or the Board is in doubt of the applicant’s evidence.

61.  With the above legal principles, I shall proceed to consider the applicant’s reasons in support of Ground 4.

The applicant’s main reasons in support of Ground 4

62.  The applicant has raised 3 main reasons to challenge the Board’s Decision as discussed below.

63.  Before going to each of the issues, it will be helpful to examine the Board’s assessment of the applicant’s evidence and the reasons given by the Board for rejecting the applicant’s evidence in support of his claim as required by Prabakar’s case.

64.  First of all, the applicant was legally represented all through the enquiry by the immigration officer and before the Board. The relevant evidence, including the Questionnaires; statements; the further document evidence and the SCNC membership card should have been submitted to the Board and the significance of the evidence should have been highlighted by his duty lawyer to the adjudicator in the course of the proceedings.

65.  In the Board’s Decision, it is quite clear that the adjudicator had taken into consideration the relevant legal principles in assessing the evidence, which counsel for the applicant has not disputed [75]. It has taken into consideration of the COI from the Director and the applicant’s duty lawyer [73]. Other observations in the Board’s Decision are that he was reluctant to answer questions from the Director [28]; that at the first hearing, he had raised new claim of Botswana, which were not raised before the Director [21] & [78]; that he had attempted to use a fake passport for entering Hong Kong [85]; that he refused to answer questions put to him by the adjudicator as to if he knew the Botswana passport was genuine or not [88] and because of his conduct, the adjudicator rejected his claim as to how he travelled to Botswana and that he resided in that country from 2003 to 2006 [94].

66.  Also, the adjudicator had expressed his concern over the applicant’s credibility in relation to the sea voyage from Cameroon to Botswana and how he passed the immigration of Botswana [101] & [102]. His explanation as to why he did not raise the Botswana claims prior to the first hearing was unacceptable as he was legally represented, which the Board weighed heavily against accepting the credibility of his Botswana claims [104]. The adjudicator had explained to the applicant at the hearing that without good explanation of how he was in Botswana for 3 years would undermine his claims as to when and how he left Cameroon, which in turn called into question the credibility of his claims generally as to the events which occurred in Cameroon [105] and for those reasons, the Board rejected the Botswana claims in their entirety [106]. It can be seen that the adjudicator has expressly told the applicant and his legal representative that he would take into consideration the overall evidence to assess his credibility of his evidence in support of his claims.

67.  In relation to the Cameroon’s claim, the adjudicator had raised with the applicant whether he was facing lawful prosecution as well as the prospect of his facing death penalty [110]. In its assessment of the credibility of the applicant’s evidence, the Board had taken into consideration the fact that the applicant made new claims that he was arrested a total of 4 times in Cameroon due to his role as an activist with SCNC whereas he only mentioned the last detention by police, which was his mother being raped incident, without mentioning to the Director the first 3 arrests and the Board was not satisfied with the applicant’s explanation [111] – [119].

68.  The Board found his evidence in relation to the killing of the police officer markedly different among his evidence at the first hearing, the Questionnaire, the first Questionnaire and the SCF and ultimately, the adjudicator said:

“121. … …To my mind, the Appellant’s inconsistent evidence regarding the killing of the police officer and the number of people arrested for that are further matters which weigh heavily against accepting his claims as credible.”

69.  The Board allowed time for the applicant’s duty lawyer to review all of the evidence regarding the number of times the applicant was arrested, whether the applicant was responsible for the killing of the police officer and how many people were arrested for that killing [123]. The Board made its decisions after hearing final submissions from both parties.

70.  The Board had also given its reasons for disbelieving the SCNC letters and the affidavits. In paragraph 125 of the Board’s Decision, the Board said:

“… … what causes me the most concern regarding the SCNC letters and the Affidavits is that the contents of those letters is (as highlighted above) inconsistent with the Appellant’s own claims in several material aspects, not the least of which is the number of times he was arrested and tortured. I expressed that concern to the Appellant. I am not persuaded by his explanations as set out above that basically, it was a mistake for him not to include in the Questionnaire and the SCF the claims that are in SCNS letters and the Affidavits. For those reasons, I have too much doubt regarding the reliability of the SCNC letters and the Affidavits and therefore I place no weight on those documents.”

71.  In paragraph 126 of the Board’s Decision, the Board said:

“For reasons of multiple, material inconsistencies in the Appellant’s evidence regarding his claims of past harm in Cameroon as well as his implausible evidence and his non-persuasive explanations, I find the Appellant was not a credible witness.”

72.  I shall now consider each of the applicant’s complaints below.

The first reason

73.  The applicant complains that the adjudicator failed to consider the documentary evidence, for the determination of the applicant’s credibility, such as the applicant’s SCNC membership card, a document showing that his mother changed her name to an English sounding name and the further documentary evidence, which supports the applicant’s fact that his family was being persecuted by reason of their involvement in SCNC.

74.  The above documentary evidence is the corroborative evidence in support of the applicant’s primary evidence to prove that he was an active member of SCNC, which was targeted by the Cameroonian government. The applicant’s primary evidence is his own statement, together with the exhibit of his SCNC member card, the SCNC letters and the affidavits. No doubt, the Board had considered all the primary evidence. For the reasons given above, the Board attached to weight to the documentary evidence, which include the applicant’s statement, with the exhibit, the SCNC letters and the affidavits. The Board has not made any finding on the authenticity of the SCNC letters or the affidavit although they were not notorised. The Board did not make investigation into their authenticity. The reason for it to do so is not shown in the Board’s Decision. However, it is clear that the Board did not wipe out all those documentary evidence. It disbelieved the contents which support the applicant’s claim as more specifically set out in paragraph 127 of the Board’s Decision - see paragraph 13, supra, based upon the inconsistencies of the main factual issues among the document evidence. Without the primary evidence, the Board did not go further into the corroborative evidence because they cannot support the primary evidence, which has been proved to be incredible by the Board.

75.  Counsel complained that the Board did not refer to the “Further documents”[2], which the Director referred to in the Director’s Decision paragraph 8.62 and paragraph 26.4 respectively. These documents are the email from the then Executive Director of Global Conscience Initiative, an Addendum to Affidavit dated 19 January 2015 from Mr. NE and a further statement dated 14 January 2015 from Mr. ATT, which are to prove that the applicant was a member of SCNC and was subjected to arrest by the Cameroonian government and also that his family was subjected to harassment and intimidation. The Director, in paragraph 26.4, mentioned that the documents are connected with the applicant’s step sister’s father, Daniel Ebai, who was a SCNC member and he disappeared after police’s arrest. However, the applicant refused to disclosed what happened after he left Cameroon, the Director considered that further investigation into the connection of Daniel Ebai and the applicant would be of no assistance. If the Board did not accept the facts as stated in the SCNC letters, one from the chairman of SCNC, the other from the vice-chairman to prove the applicant’s identity of SCNC and the incidents of his arrest, one wonders what weight would the Board attach to the corroborative evidence on the same issue. There is nothing in the Board’s not mentioning the corroborative evidence.

The second reason

76.  It refers to the adjudicator’s refusal to place any weight on the affidavits and the letters prepared by members of SCNC, which corroborate the applicant’s claim in material aspects. The Board has given its reasons in the following paragraphs in the Board’s Decision:

“120. … … At the first hearing, the Appellant denied he killed the police officer with a knife. He added that other people were arrested for the killing of the police officer. … Importantly he told me he did not kill the police officer. It was others who did that. The Appellant told me that he was still facing prosecution for the killing of the police officer.

121. That description is markedly different to the Appellant’s claims in the Questionnaire where he clearly states he grabbed a knife and fought with the police resulting in a fatal wound to one police officer. It defers too to the account in the first Questionnaire that he intervened in the attack on his mother, during which a police officer was fatally wounded. The SCF [makes] has no recount of the attack or of the killing. None of the earlier accounts of the Appellant refer to others being arrested for the killing. The only reference in the evidence to there being multiple arrests after the killing is in the Affidavits. …”

122. I expressed to the Appellant my concern the Appellant providing the information for the first three arrests at the first hearing … Similarly, I queried why at the hearing, the Appellant said multiple people were arrested for the killing of the police officer. As noted above that information is only in the Affidavits. I am again not persuaded by the Appellant’s explanation he made a mistake.”

77.  Counsel for the applicant submits that it is not entirely clear what “material inconsistencies” the Board was referring to. Counsel further argues that there is no inconsistency in the applicant’s evidence. He submits that the applicant has never admitted that he had killed the police officer at the incident where his mother was raped. He referred to the Questionnaire and submitted that by saying “the police officer was fatally wounded” did not mean he admitted having killed the police officer. His interpretation of those words is different from that of the Director and the adjudicator. The Director and the adjudicator had heard the evidence given by the applicant themselves and considered the legal submissions by the applicant’s legal representative. I do not consider that the interpretation of the Director and the adjudicator is Wednesbury unreasonable. I do not agree that the adjudicator had committed an error of law or adopted a wrong approach in his assessment of the evidence before him.

The third reason

78.  The applicant complains that the Board failed to consider the COI, such as the Cameroon government’s treatment of the SCNC and its members and assessed the veracity of the applicant’s account of his own experience against those COI before finding the applicant’s claim incredible.

79.  This issue can be dealt with quickly. COI is ancillary to the finding of the fact. The primary evidence determines the facts of the case. It is only when the Board considers that the facts are unclear, such as the organization structure or the local customs, it may have to refer to the COI for assistance. The Board had considered the COI in this case. At what stage and to what extent can the Board rely upon the COI is a matter at the discretion of the Board in its assessment of the case.

CONCLUSION

80.  I find no valid reason from the applicant to challenge the Board’s Decision to satisfy the test as laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 30 November 2007.

15. … …  The test which should be applied is the arguability test. … A reasonably arguable case is one which enjoys realistic prospects of success. … It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

81.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

82.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

DISPOSITION

83.  I shall make an Order in terms as follows:

(1)  leave for the applicant to apply for judicial review of the Board’s Decision be refused and his application be dismissed;

(2)  the Order dated 22 December 2020 granting anonymity to the applicant be lifted forthwith;

(3)  costs of this application and the hearing be in the cause of the proceedings; and

(4)  the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

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