GBEDEGBE ESSEGNO KODJOGAN IGNEZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2752/2018

[2024] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2752 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 December 2018 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 November 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 July 2017 (the “2017 Notice”). 

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.  

3.  The Applicant is a Togolese national.  He entered Hong Kong on 25 September 2005 as a visitor and was permitted to remain until 9 October 2005.  He overstayed and was arrested on 5 October 2009 four years later.  On 7 October 2009, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was rejected by the Director’s Notice of Decision dated 17 July 2013 (the “2013 Notice”).  That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), his claim was also assessed under BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. By the 2017 Notice, the Director rejected his claims based on the remaining grounds. 

4.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 15 November 2018, the Board dismissed his appeal.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) and Supplementary Claim Form (“SCF”) prepared by him with legal assistance and the records of his screening interviews in the presence of his lawyer.  In gist, he claims that he would be harmed by the Togolese authorities for his past political activities in documenting their human right violations.

6.  The Applicant was born in Lome, Togo.  He received education up to the university level.  In October 2003, he joined a voluntary organisation, namely the Peace Corps for African Renaissance (“Peace Corps”) as a volunteer.  A national movement called Pacifist March took place between 5 and 20 February 2005.  He helped the Peace Corps to document human rights violation committed by the Togolese military and the militia in suppressing the movement.  These violations included shooting protesters with real bullets, arresting and killing protesters. 

7.  On 30 June 2005, three men came to his house to look for him.  The Applicant’s father told those men that the Applicant was not at home.  Nevertheless, they searched his home and attacked his father and younger brother.  His younger brother’s arm was broken after being beaten by whips and batons.

8.  The Applicant’s father reported the incident to the Togolese authorities, but no follow-up action was taken.  Based on what his father told him, the Applicant surmised that those men were sent by the ruling party in Togo which was why the authorities took no action.  His father told him it would not be safe for him to stay in Togo.  Thus, he fled to his uncle’s home in Ghana.

9.  While in Ghana, his father told him that some members of the military and the militia came looking for him and wanted to arrest or even kill him because he denounced the government.  Then, he fled to Hong Kong. 

10.  The Applicant claimed that the situation in Togo had not improved, as President Faure Gnassingbe had fraudulently won the election in 2005 and members of the Peace Corps were still being targeted.

The finding of the Board

11.  The Applicant’s case was mainly founded on his speculation that the three men who went to his home to look for him were state actors sent by the ruling government to harm him.  The speculation was based on hearsay evidence from what his father told him and not supported by actual evidence that he was targeted or at risk of being tortured by the military or militia of the ruling party.  The Board also noted that even when the Applicant was working as a volunteer worker for the Peace Corps during 2003 to 2005, the military or militia had never harmed him physically or mentally.  It therefore found his claim of fear or risk of harm unreliable and incredible.  That is the evidential aspect of his claim.

12.  More importantly, the Board noted that the Applicant’s claim of risk of harm is founded on his past political activities 13 years ago (as at the date of the hearing of the appeal).  Having extensively studied the authoritative and credible country of origin information (“COI”), including the United States State Department 2016 Report, the Board was satisfied, despite some adverse comments, that the Togolese government had taken active steps to protect the rights of its citizens, that the death penalty had been abolished and there are no reports of political prisoners or detainees.  The report also considered the presidential election to be generally free, fair, transparent, peaceful and without interference from the security forces.  Against that current background, the Board found there was no logical reason for the people who went to look for the Applicant in 2005 would want to continue to harass or harm him after he had been away for more than 13 years.

13.  The Board also noted that the Applicant never suffered any actual harm in the past and there was no evidence to suggest that he would face any risk of harm that would meet the minimum threshold of severity upon his return to Togo in 2018.  It therefore found the Applicant had failed to establish, even to the low standard required, that he would face any of the proscribed risks of harm if refouled to Togo.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM[4]. It therefore dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

14.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

15.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he reiterated that human rights violation still occurs in Togo and that the situation has not changed since he left the country.  The essence of his complaint is that he disagreed with the finding of the Board that the human rights situation in Togo has improved and that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Togo.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  He had been invited by the Court via its letter dated 24 November 2023 to advise the Court of his first language and to file submissions.  He did not file any submissions.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

16.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

17.  Except for his claim that the three men who went to his home to look for him and assaulted his father and brother, which the Board rejected as hearsay and speculation, it assessed the Applicant’s claim on the basis of the case as he asserted.  That is a finding of fact which is open to the Board to make on the basis of the totality of the evidence and could not be criticised as erroneous in law, unfair or irrational.  That finding is a finding of fact well within the province of the Board which the Court in a judicial review will not interfere. 

18.  Furthermore, as indicated in Paragraph 12, that finding is not determinative.  Even if the Board had accepted the Applicant’s speculation as a proven fact, it would have no effect on the eventual outcome of the Board’s Decision.  This is because on the basis of authoritative and credible country of origin information, the Board is satisfied that the human rights situation in Togo had changed for the better during the past 13 years since the Applicant left Togo.  Though the same person who was appointed as president in 2005 by a coup d’etat without following the constitutional procedures and had allegedly committed human rights violations while he was in office, he was elected as president ten years later in the 2015 election which was regarded as generally free, fair, transparent, peaceful and without military intervention.  With the improvements in the human rights situation, the Board found the Applicant would not be at risk of harm if returned to Togo.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts on the country’s condition which are exclusively within the province of the Board, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

19.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

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

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