RE ALOULA MAGLIWE

HCAL 487/2017

[2019] HKCFI 2341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 487 OF 2017

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D E C I S I O N

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Background

1.  The Applicant is a national of Togo. He arrived in Hong Kong on 14 December 2013 as visitor. He overstayed and surrendered to the Immigration Department on 7 January 2014. The Applicant subsequently lodged a non-refoulement claim.

2.  The Applicant claimed he was targeted by the ruling party (the Union for the Republic, UNIR) and the National Intelligence Agency (“ANR”) in Togo because he was associated with Pascal Bodjona (“Pascal”). Pascal was a former minister of the government who wanted to bring reforms to the country.

3.  The Applicant said President Faure Gnassingbe succeeded his father to rule Togo and formed UNIR in April 2012. Pascal was the Minister of Territorial Administration (“MTA”). He wanted to bring good governance to the country.

4.  The Applicant shared Pascal’s views. He had worked in his ministry since 2010. The Applicant was a civil engineer. He worked in villages and secretly spread Pascal’s ideology, which was essentially against the government

5.  Pascal’s enemies feared Pascal might run for the presidency. They had him arrested and charged with fraud in September 2012. Pascal was only released on bail after having been detained for some months. Later, he was arrested again.

6.  President Faure Gnassingbe had formed ANR to target and persecute his opponents.

7.  The Applicant had a friend called Mazina Alakiwe (“Mr. A”) since young. Mr. A was the younger brother of the head of ANR. He tipped off the Applicant that ANR would soon arrest him.

8.  The Applicant continued to work in the Ministry of Territorial Administration for some time before he left Togo for Ghana on 4 December 2013. Then he flied to China.

9.  The Applicant entered Hong Kong as visitor on 14 December 2013. He overstayed and surrendered to the Immigration Department on 7 January 2014. He lodged a non-refoulement claim on 15 January 2014. The Applicant said ANR would torture him in order to get from him information of Pascal. He feared he would be killed if he was refouled to Togo.

10.  The Applicant did not know the current situation of Pascal.

11.  In the two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4] .

The Director's decision

12.  The Director dismissed the Applicant's claim by two decisions dated 13 April 2016 and 17 March 2017 respectively. The Director did not accept the Applicant faced any non-refoulement risk that warranted protection. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.

The Board's decision

13.  The Applicant appealed to the Board. The Adjudicator heard him on 27 March 2017 and 19 April 2017. He dismissed his Applicant's appeal on 28 April 2017.

14.  The Adjudicator accepted the Applicant was a supporter of Pascal and he left Togo due to some subjective fear of harm from the Togo authorities in connection with his support for Pascal. However, the Adjudicator did not accept the Applicant was a high-level supporter of Pascal. The Adjudicator was not convinced ANR had put the Applicant on its wanted list.

15.  The Adjudicator noted from country-of-origin information ("COI") that Pascal had been released from the prison since 2016. He was no longer active politically. He could pay visits overseas.

16.  The Adjudicator considered that while Pascal would still be of interest to the Togo government, there was no evidence ANR or the Togo authorities would target Pascal or his supporters.

17.  The Adjudicator did not accept there was any real risk facing the Applicant. On 28 April 2017, he rejected the Applicant’s claim with respect to all the four applicable grounds.

Judicial review

18.  The Applicant filed an application for leave for judicial review on 4 August 2017. He named the Board as respondent.

19.  Deputy High Court Judge Woodcock (‘the Judge”) heard the Applicant on 6 November 2017 and 9 January 2018.

20.  On 24 May 2018, the Judge refused to grant leave for the Applicant's sought review. She set out the reasons in [8] - [19] of the CALL-1 form as follows: –

8. The adjudicator conducted an oral hearing, on two occasions and treated the appeal as a rehearing. He correctly set out the law and key legal principles applicable to the four grounds. He set out the evidence from the applicant as well as the burden of proof and standard of proof in such claims.  There are supporting documents from the applicant that the adjudicator set out in his decision. He adjourned the appeal hearing to give the applicant additional time to provide Country of Origin (“COI”) information that was originally in French to the adjudicator in English. The other reason was because the adjudicator had misunderstood the COI, he thought the most recent election was in 2016 that resulted in a change of government but in fact the most recent election was in 2014 and President Gnassingbe was re-elected.  This being relevant was in part a reason for the second hearing being conducted.

9. The adjudicator was prepared to accept the applicant knew and was a supporter of Pascal, in part because Pascal was the former Minister of the MTA. The adjudicator accepted that the applicant left a well-paid job with the MTA which supported his claim he left his country due to some genuine fear when Pascal was arrested in September 2013.  He set out his findings in great detail and he located country information that related to the political situation as well as the political activity of Pascal himself. The adjudicator discussed with the applicant that the reports he found indicated to him that Pascal was, after his two arrests, not politically active any more. The adjudicator found from the COI that Pascal had a passport and was free to travel overseas. The information also indicated that the ANR or the Togolese authorities are not currently targeting Pascal or his supporters and harming them.

10. The adjudicator was not prepared to accept that the applicant’s friend told him that the ANR were about to arrest him because of their childhood friendship. The adjudicator highlighted the inconsistencies in the applicant’s evidence regarding their childhood friendship. The evidence that he was on a blacklist and how he found out about this fact was unconvincing. The adjudicator concluded that the applicant fabricated these parts of his evidence to strengthen his claim for non-refoulement. He concluded that the applicant was a supporter of Pascal but had exaggerated his level of support and exaggerated his level of involvement.

11. The adjudicator very fairly accepts that Pascal obviously remains a person of interest to the Togolese authorities and there was evidence that he suffered financial disadvantage when his television stations were closed down but he did not find those events represented a personal risk of harm to the applicant. He concluded that there was only a remote or speculative risk which was not a real risk the applicant would be harmed by those enemies he identified because of his support for Pascal. Therefore, the applicant had not made out a case for non-refoulement protection under any of the applicable grounds. He was unsuccessful in showing he is at risk of torture, he is unable to invoke the protection of BOR 2 or BOR 3 and cannot prove a persecution risk the purpose of a non-refoulement protection claim. The adjudicator confirmed the decisions of the Director.

12. I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault. He analysed material, claims and evidence with utmost care, meticulously and extreme fairness.

13. The applicant has submitted in his statement that the adjudicator in effect did not act with a high standard of fairness, acted irrationally by placing too much weight on irrelevant matters and he did not understand the applicant’s evidence properly or fully which led to a wrong decision.  His misunderstandings led to him not believing the applicant. The applicant reiterated these points in a letter he wrote to the court dated 9 January 2018 which enclosed previous letters submitted.

14. The applicant has made much of the fact the adjudicator made a mistake and thought that there was a recent change of government in Togo which was why he was not at risk if refouled. The adjudicator has addressed this mistake in his decision and made it clear that he is no longer mistaken, see paragraph 31. There is no merit in this ground or submission.

15. There is no merit also in the suggestion that the adjudicator was not happy with his information because they were in French. The adjudicator gave the applicant time to provide English translations of the French reports he wanted to submit; he adjourned the hearing. Ultimately the applicant did not provide English translations but describe the contents of the reports and the adjudicator located information for himself about the subject matter after the hearing in recognition of his duty of fairness. There is no substance to this complaint or ground.

16. I found the allegations that the adjudicator placed too much weight on irrelevant matters and did not understand the applicant’s claim properly to be groundless. In fact, this adjudicator cannot be faulted for being conscientious and meticulous in assessing the applicant’s claim and ensuring he understood it and the COI. His findings are detailed and there can be no criticism of him not giving full reasons for his conclusions.

17. In the oral hearing the applicant did repeat what was in his statement and added that the adjudicator either did not follow his evidence or did not understand his evidence. He also added that he was not given sufficient time to provide more information to support a BOR 2 risk claim. Not only did he have insufficient time, he did not know how to access the information to submit it. This was not brought up during the appeal hearing with the adjudicator, there is no record of this in the decision.

18. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.

Application for leave to appeal out of time

21.  The Judge refused to grant leave to the Applicant to apply for judicial review. The decision was made on 24 May 2018 and it was duly sent to the Applicant.

22.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the Applicant had 14 days to lodge an appeal. The appeal period expired on 7 June 2018. The Applicant failed to lodge an appeal in time.

23.  Fifty-five days after the deadline, the Applicant took out a summons on 1 August 2018 to apply for extension of time to appeal against the Judge’s order.

24.  In his affidavit, the Applicant said he ‘did not have the submission fee on time as request’ and he had ‘difficulties in making the statement’.

25.  In the two-page statement attached to his affidavit, the Applicant said he had no legal assistance and only got limited language assistance from NGO (the Justice Centre.) [The Applicant speaks French.] The Applicant complained the Adjudicator was wrong with his finding including misunderstanding the country-of-origin information ("COI") regarding election in Togo. He said ‘That was the contest of the adjudicator’s misunderstanding. And I wondered even before the judge during my hearing at the Court if such error has no consequences, I could not understand the reason of the Adjudicator's apologies.’

Hearing for leave to appeal

26.  I heard the Applicant on 13 September 2018 and 24 September 2018.

27.  On 13 September 2018, the Applicant said he had tried to file an appeal against the Judge’s decision but he could not pay the appeal fee of HK$1,045. [There was indeed a summons application by the Applicant to the Master for exemption of appeal fee. There was no date on the summons but the Applicant's affirmation was dated 17 July 2018. Master Au-yeung heard him on that day. The Applicant failed to state any ground of his intended appeal against the Judge’s decision. The Master refused to exempt the appeal fee since the Applicant could not provide any valid ground of complaint against the Judge’s decision.]

28.  Before me, the Applicant said he had no legal assistance. He failed to get legal aid. He had appealed against the Director of Legal Aid but he did not know the result.

29.  I told the Applicant he must show a reasonable prospect of success of his intended appeal in order to get extension of time to appeal. The Applicant said he had difficulty to explain his complaints. The matter was adjourned to 24 September 2018 for the Applicant to write out his grounds in detail.

30.  On 24 September 2018, the Applicant repeated that he had tried to lodge an appeal against the Judge’s decision in time. He said he went to the court on the last day of the 14-day period. He was told by the court staff that he had to pay a fee. He then sought help from the Justice Centre as to what to do since he could not pay.

31.  The Applicant was able to produce a letter from the Justice Centre dated 7 June 2018. It said the Applicant went to the court that day, intending to appeal against the Judge’s decision but he did not have legal assistance so he did not know what to do.

32.  On 24 September 2018, the Applicant submitted to the court a further statement in French with a 4-page English translation. He complained that the decision made by the Adjudicator and confirmed by the Judge ‘was made on the basis of doubt, no concrete evidence or evidence to the contrary was given as justification’. He said the Adjudicator was mistaken in the assessment of his risk and the Judge also failed to pay heed to the consequences of the Adjudicator’s mistake. The Applicant complained his case was not well understood. He said there was no presidential election in 2014 and 2016; the most recent election in Togo took place in 2015. The Applicant also complained the Judge failed to note that he was short of resources, had English language problem and did not have legal representation.

33.  In court, the Applicant said he had two more points to raise against the Judge’s decision: (i) the Judge, as the Director and the Adjudicator, failed to see internal relocation in Togo was not possible; (ii) the Judge did not accept his relation with Pascal but she failed to explain clearly why she thought he had exaggerated about his relationship with Pascal.

Discussion

34.  In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[5] 

35.  It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal.  The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.

36.  It is repeated in Re Islam Rafiqul that “…In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong…”.[6] 

37.  In light of the letter from the Justice Centre, I would accept the Applicant did go to the court on 7 June 2018 to indicate he wanted to lodge an appeal against the Judge’s decision. That was the last day of the 14-day period. However, the Applicant did not actually file an appeal that day. He said he could not pay the appeal fee and he did not know what to do as he did not have legal representation.

38.  The Applicant did not have legal assistance then and he also needed language help. However, these were not sufficient reasons for the delay. The Applicant could have sought help earlier from the Justice Centre or the Resource Centre for Unrepresented Litigants.

39.  The Applicant claimed he could not pay the appeal fee of $1,045. If he really had no money to pay on 7 June 2018, he should apply for exemption right away instead of waiting till 17 July 2018. By then, already 5 odd weeks beyond the appeal deadline, the Applicant still could not provide any ground of appeal for the Master to consider exemption of payment.

40.  The Applicant failed to justify his delay. Nevertheless, I still have to consider the prospect of his intended appeal which is a crucial assessment in an application to extend time.[7] The Applicant must show a reasonable prospect of success of his intended appeal.

41.  Basically, the Applicant complained the Adjudicator wrongly understood the political situation in Togo and the risk he would face if he was sent back there. He said the Adjudicator was mistaken about the election and the consequences.

42.  The Adjudicator was indeed mistaken of the country-of-origin information ("COI") in his first interview of the Applicant. However, he realized that after reading the materials submitted by the Applicant afterwards. He called for a second hearing and clarified the matter with the Applicant. The Adjudicator was not under any mistaken perception when he decided whether the Applicant faced any real risk in Togo. He concluded on proper interpretation of the evidence that the Applicant faced no real risk that warranted non-refoulement protection.

43.  The Applicant said the Judge failed to pick up the Adjudicator’s mistake. He also complained the Judge was not aware of his language problem and lack of legal representation.

44.  The Judge was aware the Applicant spoke French and needed others to help him to translate the documents into English. She certainly knew from the records that the Applicant was only represented by the Duty Lawyer Service up to the Director's decision dated 13 April 2016.

45.  The Judge dealt with the Applicant's complaints against the Adjudicator thoroughly, including the Adjudicator’s once mistaken perception of a change of government in Togo.[8] 

46.  The Applicant said the most recent election in Togo was in 2015, not 2014 or 2016.

47.  It did not matter whether that election was in 2014, 2015 or 2016. The Adjudicator and the Judge both accepted President Gnassingbe remained in his office and there was no change of government. The Adjudicator rejected the Applicant’s claim as he found the Applicant had exaggerated his risk. He found the Applicant faced no real risk that warranted non-refoulement protection. The Judge correctly endorsed the Adjudicator’s decision. She had considered the Adjudicator’s decision with rigorous examination and anxious scrutiny. She found the Adjudicator to be without fault and had analysed the Applicant’s claim with utmost care and meticulously. There was no evidence of procedural unfairness. The Adjudicator made no error of law and had adhered to a high standard of fairness. The Judge was satisfied the Adjudicator’s decision was not Wednesbury unreasonable.

48.  The Applicant said the Judge, as the Director and the Adjudicator, failed to see internal relocation in Togo was not possible.

49.  The Adjudicator rejected the Applicant’s claim because he found the Applicant had exaggerated his risk. He found the Applicant faced no real risk that warranted non-refoulement protection. As such, the Adjudicator need not consider the issue of internal relocation. The Judge did not have to say anything about internal relocation too.

50.  The Applicant complained the Judge did not accept his relation with Pascal and she failed to explain clearly why she thought he had exaggerated about his relationship with Pascal.

51.  The Judge was not the fact-finder. The Adjudicator was and he had explained clearly his finding on the relationship between the Applicant and Pascal. The Adjudicator was not irrational or unreasonable. The Judge should not interfere with his finding and decision. The Judge rightly concluded the Applicant’s complaints were not reasonably arguable so she refused to grant leave for judicial review.

52.  The Applicant failed to advance any viable ground for the Court of Appeal to consider the Judge’s decision dated 24 May 2018 should be reversed.

Conclusion

53.  The Applicant fails to show any good reason for his delay and fails to show his intended appeal has any reasonable prospect of success. I refuse to grant him leave to appeal out of time. The summons dated 1 August 2018 is therefore dismissed.