NK v. LAM KUI PO WILLIAM DEPUTY CHAIRPERSON OF THE TORTURE CLAIMS APPEAL BOARD

HCAL 18/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 18 OF 2016

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D E C I S I O N

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1.  This is an application for leave to commence judicial review against the determination dated 30 October 2013 of Mr William Lam (“the determination”), Deputy Chairman of the Torture Claims Appeal Board (“the TCAB).

2.  The determination dismissed the applicant’s appeal from the decision dated 16 May 2013 of the Director of Immigration (“the director”) which rejected the applicant’s claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”).

3.  The applicant is a Togolese national who entered Hong Kong on 15 June 2006.  He overstayed since 30 June 2006.  He filed an asylum claim with the UNHCR on 20 June 2006.  On 13 April 2007, he surrendered to the Immigration Department (“the department”).  On 17 April 2007, he lodged his CAT claim with the department on the ground that he was a son of the late secretary of ACR, an opposition party in Togo.  If he were to be returned to Togo, he would be tortured by the Togolese government and the police in his prefecture which was under the order of his friend’s father.

4.  This application was filed on 20 January 2016. That was more than 1 year and 11 months out of time.  It was thus made with undue delay under section 21K(6) of the High Court Ordinance.  An extension of time is needed under O 53 r 4 of the Rules of the High Court (“the RHC”) (§26 of AW v Director of Immigration & Anor, CACV 63/2015 dated 3 November 2015).

5.  The applicant has also filed on 14 March 2014, a non-refoulement claim with the unified screening mechanism (“USM”) on the grounds of:

(1) risk of cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of the Hong Kong Bill of Rights (“BOR 3 risk”); and

(2) persecution risk with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution risk”)

6.  The Secretary of Justice on behalf of the director as the putative interested party has in accordance with my direction filed a set of initial response to this application.  The stance of the director is that the court should dismiss this application without the need to consider the merits of the proposed grounds for judicial review.  The director’s grounds for dismissal are the inexplicable substantial delay and the lack of utility.  The director also takes the view that the proposed grounds have no merit.

The grounds of the application

7.  The Form 86 goes up to 118 pages with exhibits in seven lever arch files.  There are 13 grounds raised for judicial review.

“Ground (1)

Misdirection in the Law – The Respondent misdirected himself on the law by finding the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future. The Respondent also misdirected himself on the law failing to acknowledge and apply the extended meaning of state protection.”

8.  There are two legal issues in this ground.  The first legal issue relied on AM v Director of Immigration & Anor, HCAL 102/2012 at §§118-119 which rejected the need of past exposure of the applicant to torture as a pre-requisite for a belief of risk of torture to him in future.

9.  For the second legal issue, the applicant argued that the determination did not have any consideration and analysis of the issue of state acquiescence under the extended meaning which involves the exercise of due diligence by the state.

10.  The second legal issue of the first ground overlaps with grounds (5) and (6) below.  There are also considerable overlaps and repetitions in grounds (2) to (6):

“Ground (2)	Procedural Impropriety/Unfairness – The Respondent’s failure to carry out sufficient research and inquiry into the COI conditions had the material consequences of a failure to have regard to relevant and up-to-date COI research, whether of wide and overall general relevance, or focusing on the circumstances, attributes and beliefs of a person fitting the profile of the Applicant. As of consequence, the Respondent could not possibly have arrived at a fair decision in dismissing the Applicant’s case resulting in an unfair procedure.
Ground (3)	Irrationality – The Respondent failed to take into account and consequentially to take into account available and relevant COI. He also failed to take into account the all COI research cited in the Director’s Notice of Decision termination. Furthermore, the Respondent failed to take into account highly relevant information in the said cited COI, cherry-picking, taking into account and putting weight on COI information of little or no relevance. The Respondent also relied and put weight on outdated COI research publications instead of the most updated available and even in that outdated COI he cherry-picked, taking such information out of context and adverse to the Applicant. As of consequence, the Respondent arrived at a Decision in dismissing the Applicant’s case that was unreasonable to a Wednesbury standard.
Ground (4)	Irrationality – The Respondent failed to fully consider the COI research cited by the Director, failed carry out further necessary relevant COI research, and failed to properly and fully evaluate and make a finding of fact as to whether there exists in Togo a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of CAT. As of consequence the Respondent failed to take such a finding in account when making the Decision, resulting in a Decision that is Wednesbury unreasonable.
Ground (5)	Irrationality – The Respondent finding that that there was no state involvement and thus no state consent or acquiescence is irrational. His finding failed to take into account and put full weight on mandatory relevant considerations. Furthermore, he took into account and put weight on considerations that were of little or no relevance or on considerations that were not evidence based. This resulting in a finding and Decision that is Wednesbury unreasonable.
Ground (6)	Irrationality – The Respondent failed to analyse and assess whether state protection exists in Togo under the extended meaning namely whether the state had exercised due diligence or sufficient due diligence.  Furthermore, the Respondent misdirected himself on the law erroneously stating what the extended meaning of state protection was.”

11.  Grounds (7) and (8) are on the issue of Internal Flight Relocation:

“Ground (7)

Procedural Impropriety – The Respondent made an assessment of the Applicant’s Internal Flight Relocation (IFR) alternatives without providing any notice and without affording the Applicant to be heard in advance of his Decision on 30 October 2013, thus denying the Applicant any opportunity to make written or more properly oral submissions on this factual and legal issue. These failures amounted to a procedural impropriety resulting in gross unfairness in the assessment procedure.

Ground (8)

Irrationality – The Respondent failed to properly address the issue of Internal Flight Relocation (IFR) alternatives, firstly, failing to utilise the correct legal test, failing to take into account and/or put weight on relevant facts and thirdly, failing to analyse the issue in sufficient depth.  The consequential finding that IFR was a reasonable option for the Applicant is Wednesbury unreasonable.”

12.  Ground (9) is an omnibus ground containing materials already covered by the grounds above:

“Ground (9)

Irrationality – The Respondent took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred. As well the Respondent failed to take into account and put weight on facts and inferences that are most favourable to the Applicant’s case. As of consequence the Respondent had cherry-picked facts and failed to take into account relevant and/or mandatory relevant considerations. As of consequence, the Respondent arrived at a Decision in dismissing the Applicant’s case that was unreasonable to a Wednesbury standard.”

13.  The applicant listed the following aspects in the determination which he said the respondent has made errors of findings and assumptions. He then expanded on each of them.  The aspects are:

(1) Background;

(2) Basis of the Appellant’s claim;

(3) Analysis

(4) Analysis – Legal “Element 4”: the requirement of the “State Actor

(5) Analysis – Legal “Element 1”: “Severe Pain and Suffering” as stated in the common law;

(6) Analysis – Internal Relocation;

(7) Analysis – The Issue of Credibility;

(8) Analysis – Grounds of Appeal; and

(9) Conclusion.

14.  Grounds (10) and (12) should be read together.  They are on the denial of an oral hearing:

“Ground (10)	Procedural Impropriety/Unfairness – The Respondent’s decision to proceed on paper and not by way of oral hearing was contrary to Brief Notes and contrary to the high standards of fairness required under ST v Betty Kwan & Anor, CACV 115/2013. The decision not to hold an oral hearing was also contrary to a fair procedure to be afforded the Applicant in assessing the IFR issue.
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Ground (12)	Apparent Bias – the Respondent’s findings in his Decision raised a real possibility of Bias.  In particular, a fair-minded and informed observer, having considered the Decision and in light of the Respondent deciding not to afford the Applicant an opportunity to be orally heard, would conclude that there was a real possibility that the Respondent was biased.”

15.  Ground (11) asserts that the respondent should have procured psychological and psychiatric reports on the applicant.

“Ground (11)

Procedural Impropriety – the Failure to call for Psychological and Psychiatric evaluations and reports at any stage of screening or on appeal by the Respondent resulting in an unfair procedure.”

16.  Finally, the last ground puts the blame on the DLS assigned lawyer as follows:

“Ground (13)

Procedural Impropriety/Unfairness – The failures at first instance by the Assigned Lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.”

Chronology

17.  The steps in relation to legal aid are taken from a letter of the Director of Legal Aid (“DLA”) dated 11 April 2016.

30 October 2013 – The applicant was notified of the determination.

11 November 2013 – The applicant applied for legal aid.

10 December 2013 – The DLA offered legal aid to the applicant.

23 December 2013 – The applicant accepted the offer of legal aid.

14 January 2014 – The DLA issued a legal aid certificate and assigned a solicitor of the applicant’s solicitors to act for the applicant.

18 January 2014 – The assigned solicitor requested for assignment of counsel and nominated one counsel.

14 May 2014 – The DLA asked the assigned solicitor for more nominations of counsel.

5 June 2014 – The DLA sent a reminder to the assigned solicitor.

24 June 2014 – The judgment of ST v Betty Kwan, CACV of 2014 was handed down.

8 July 2014 – The DLA made called the assigned solicitor to follow up on the nomination of counsel.

11 July 2014 – The assigned solicitor provided two more names of counsel.

17 July 2014 – The DLA assigned Mr Tibbo of counsel for the applicant.

August 2014 – Mr Tibbo of counsel, who was then overseas, was notified of DLA’s assignment.

8 September 2014 – The judgment of Mallawa Arachchige v Wesley Wong, HCAL 1/2014 (in which Mr Tiboo was counsel for the applicant) was handed down.  Mr Tibbo had advised the applicant to wait for this judgment before filing his Form 86 (§122 of Form 86).

8 October 2014 – Mr Tibbo returned to Hong Kong.

20 April 2015 – The applicant’s solicitors requested the DLS CAT office for a complete copy of the applicant’s file.

23 April 2015 –   The DLS CAT office supplied some of the documents requested for but not post-conference notes, post-screening notes, written legal advice of the DLS assigned lawyer and the CLO contemporaneous notes.

Late April 2015 – The applicant’s solicitors provided the documents from the DLS and the determination to Mr Tibbo.

April – December 2015 – Taking instructions from the applicant and drafting and settling of the Form 86 and two affirmations of the applicant.

29 December 2015 – An application was lodged for an anonymity order.

12 January 2016 – The applicant’s solicitors filed the Form 86 for the applicant.  The Form 86 was party based on ST v Betty Kwan and Mallawa Arachchiage v Wesley Wong ((§122 of Form 86).

Delay

18.  The three month period under O 53 r 4 expired on 30 January 2014.

19.  After the issuance of the legal aid certificate and assignment of solicitor on 14 January 2014, the assigned solicitor requested for assignment of counsel on 18 January 2014.  But the DLA only responded on 14 May 2014 to ask for more nominations of counsel.  There was a gap of nearly four months. The applicant’s solicitors did not appear to have done anything in the meantime. I think they should have sent a reminder to the DLA after three weeks to a month from their letter of request.  There was thus a delay of at least two months.

20.  The applicant’s solicitors, in response to the DLA’s request, provided two more nominations of counsel on 11 July 2014.  That was after a reminder on 5 June 2014 and a telephone call on 8 July 2014 from the DLA. There was thus a further delay of about a month.

21.  Though Mr Tibbo was assigned as counsel for the applicant on 17 July 2014, he was out of town and could not have acted immediately.  He only returned to Hong Kong on 8 October 2014.  In that situation, the applicant’s solicitors should have asked for re-assignment of another counsel.  That was not done and, assuming re-assignment of counsel would take about a month, two more months were wasted.

22.  Mr Tibbo had focused on the case upon his return on 8 October 2014.  The request by the applicant’s solicitors to DLS for papers on 20 April 2015 was therefore very dilatory.

23.  After the delay of no less than five months as pointed out above, it took another 15 months (8 October 2014 to 12 January 2016) for the Form 86 to be filed.  That was unduly long.

Justification for extension of time in the Form 86

24.  The applicant has made extensive submissions in the Form 86 on why he should be given extension of time to make this application instead of waiting for the USM.  He submitted that despite the delay, he should be allowed to go for judicial review and eventually to go back to the TCAB for a re-consideration of his appeal from the director’s decision.

25.  The first ground is that this case involves questions of great general and public importance.  §138 of the Form 86 asserts that the legal issues raised are complex and have not yet been argued in full and, as a consequence, have not yet been adjudicated upon by any court.  §139 further assets that the outcome of this application will also affect the approximately 11,000 current torture claimants in Hong Kong and the current practice and procedure of the Director (RAS) and the TCAB.

26.  Mr Tibbo also submitted orally that the ultimate success of this application will result in lessons to be learnt by the TCAB.

27.  However, the rest of the Form 86 does not echo these paragraphs by explaining what are the complex legal issues or questions that are of great general and public importance.  There is also no indication of how a successful outcome of this application will affect the other current torture claimants or the practice and procedure of the Director (RAS) or TCAB.

28.  If the applicant is referring to the need of an oral hearing, that has already been dealt with in ST v Betty Kwan (CACV 115/2013).

29.  The applicant also asserts that this application effectively challenges the USM, but he has only registered with the USM and not been screened by it.  He has also not set out any specific ground to challenge the USM.  I cannot see how he can challenge the USM in this application.

30.  The applicant also disagrees with the judgment of the Court of Appeal in AW v Director of Immigration & Anr, CACV 63/2015 (§140 of the Form 86).  He submitted that the existing rights and interests of torture claimants under CAT had been stripped away by this judgment (§148(i) of the Form 86).  However, I am of the view that the grant of leave by the CFI in this case cannot affect the Court of Appeal’s judgment in that case.

31.  On the whole, I cannot see what new lesson can be leant by the TCAB from an ultimate success of this application.  I do not think this ground has any use for extending the time to make this application.

32.  The applicant also submitted that through no fault of his own, he had to go through the enhanced screening mechanism (“ESM”).  Now he and his family may be forced to go through many more years of screening under the USM (§141 of the Form 86).

33.  He also filed his third affirmation on 8 June 2016 to set forth the dire financial conditions that he and his family are in.  Hence, he submitted that to send his case to the USM will mean extra delay of years for the process of his case and hence the continuation of his destitute.

34.  I think the change of the ESM to USM is for improving the screening of non-refoulement claims.  The delay and prolongation of destitute to the claimants is not unique to the applicant but affected all pending claimants. This is not a ground peculiar to the applicant.

35.  The applicant registered with the USM on 14 March 2014.  That was over two years and three months ago.  If leave should be granted for this judicial review to proceed, and assuming that the applicant will succeed at the judicial review and he will go before the TCAB again, the result of the reconsideration of his appeal to the TCAB will probably not be available within the coming year.

36.  If he should fail in the judicial review or the reconsideration of his appeal by the TCAB, he will still have to go to the USM for screening of his BOR 3 risk and persecution risk.

37.  Mr Tibbo in a further letter of submissions dated 23 June 2016 submitted that asylum seekers who are destitute and long term in Hong Kong may resort to abandoning all non-refoulement claims due to the poverty, idleness and a lack of self-sufficiency because of prohibition from working.  This is a problem for all asylum seekers.  I think Mr Tibbo may wish to bring this problem to the attention of the director.  But I cannot pay any special consideration to it in this application as to do so may result in unfairness to the other asylum seekers who are in similar situations.

38.  Weighing all factors together, I do not think the possible delay, if any, as may be caused by requiring the applicant to go to the USM, can justify the use of resources for a judicial review of the determination and, if successful, a reconsideration of his appeal by the TCAB.

39.  The applicant also asserts that the implementation of CAT is subject to scrutiny and oversight of UNHCR.  There is a committee of torture which has a crucial oversight role that includes reporting by member states, investigations and avenues of redress by individuals.  There are also complaint mechanisms by individuals against a member state.  In contrast, the ICCPR Committee which has the role of oversight of the BOR 3 rights is offering far less oversight on torture.

40.  I do not think I have to express any view on these assertions.  The reason being that the applicant has been screened for a CAT claim, but failed.  If the UNHCR and CAT Committee have oversight on CAT claimants, the applicant was within their purview when he was so screened.  If such oversight should end upon rejection of the claim by the director, then even if he should succeed in the judicial review, he would only go back to the TCAB for reconsideration of his appeal against the director’s rejection of his claim.  That would not put him back to the oversight of UNHCR and the Committee again.

Further written submissions of justification for extension of time

41.  Mr Tibbo also filed a 35-page written submissions in addition to the 118-page Form 86.

42.  He submitted that the applicant adopted a calculated delay to wait for the judgment of Zervos J in Mallawa Arachchige as there was also the lack of oral hearing before the TCAB.  But this judgment was handed down on 8 September 2014 before Mr Tibbo’s return to Hong Kong on 8 October 2014. The wait for this judgment could not have contributed to the 15 months taken for preparing the Form 86 and the affirmations.

43.  Mr Tibbo also submitted that the COI research took significant time as there was little material available in English.  The French language publications were limited to government publications, a few UN documents and newspapers.  There was thus limited information which was scattered and fragmented over long period of time, (§34 of written submissions).

44.  I am of the view that what are necessary for this application are materials relevant to the applicant’s personal circumstances.  There is little use in advancing an onslaught generally on the various government departments, security/discipline forces and judiciary of Togo.  I cannot grant leave just for the allegations of abuse of human rights in that country.  That is not the test for CAT protection.

45.  In this connection, I would echo the sentiment of Zervos J in his judgment in Mallawa Arachchige in §§9 and 12 to 13:

“9. The contents of the application and the papers that have been assembled in support of it in quite a number of instances are irrelevant or inappropriate for the purpose of an application for leave to apply for judicial review. I will say more about this later but it seems to me that it has been prepared more on the basis of a general appeal.

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(b) Prolixity of the application

12. The second matter concerns the numerous grounds and voluminous materials filed in support of the application. In the end, a lot of the materials were either irrelevant or unnecessarily duplicated which nevertheless required the court to go through all the materials and digest them only to find that a small part was really relevant. That in itself causes delay and wastes valuable court time and resources.

13. The grounds and the materials filed in support of the application should be tailored to address the relevant matters and issues, and not be simply the filing of all materials relevant to the case as a whole.”

46.  Mr Tibbo also repeated at great length the applicant’s current destitute (§§41-54 and 60 of written submissions).  He also reiterated that the CAT carries with it expertise and unique oversight and powers that are not found in BOR 3 risk and persecution risk (§55 of written submissions).  He also submitted that the entire USM has an effective 0% success rate and to send the applicant to the USM is highly prejudicial as he will be put into a screening and appeal process with manifest procedural unfairness and that he would have a zero chance of success.  He also criticised the USM as a closed system of justice (§56, 58-59 and 85-116 of written submissions).  He also alleged that the government is reluctant to evolve the screening system resulting in the unnecessary creation of backlogs (§§61-84 of written submissions). 

47.  However, even if all these are true, they do not justify the granting of extension of time for making this application or the granting of leave to proceed with judicial review on the determination.  The reason being that these grounds challenge not the determination but the USM.

48.  Mr Tibbo also submitted that there is great utility in allowing this case to go ahead as there are significant issues that will expose a defective USM with real prospect for tangible reform.  But I repeat that the applicant has not gone through the USM and has no basis to challenge it.

49.  Mr Tibbo also submitted orally that the rights and interest of claimants under CAT are different from those of BOR 3 risk and persecution risk and the screening for different claims would be based on different considerations. But he did not elaborate.  As I see it, the screening for BOR 3 claims should be on broader considerations than CAT as there is no requirement of a state actor in BOR 3 risk claims.

50.  Mr Tibbo further submitted orally that if the applicant should succeed in the judicial review, even if he would have to be screened under the USM in the future, his previous screening materials and result would not be available to the director in the USM screening.  Otherwise, he would be prejudiced by the past result and materials in the USM screening.

51.  I do not think there will be such prejudice to the claimant even if he does not get leave in this application.  I refer to §§61 and 63 of the judgment of Kwan JA in AW v Director of Immigration & Anor, (CACV 63/2015):

“61. Ms Tong made these further submissions on behalf of the Director in respect of the applicant’s rights and interests in his BOR 3 risk and persecution risk claims under the USM, to address the concerns expressed by Mr Kat:

(1) the BOR 3 risk and persecution risk claims will be considered afresh by a different immigration officer from the one who rejected the applicant’s CAT claim. In the case of any appeal to the Torture Claims Appeal Board (“TCAB”), the appeal will be handled by a different Board member or adjudicator other than the one who determined his previous appeal in respect of his CAT claim;

(2) the previous decisions made by the Director and the adjudicator in relation to the applicant’s CAT claim will not be provided to the new immigration officer or new adjudicator who will handle the applicant’s BOR 3 risk and persecution risk claims under the USM;

(3) although the materials previously supplied by the applicant under his CAT claim will be taken into account under the USM, the applicant will also be given an opportunity to provide further information or representations if he should wish to do so.

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63. It is not necessary to consider the further materials which Ms Tong sought to place before the court (objected to by Mr Kat in the absence of a summons for this purpose) with the view of showing that her above submissions have merely reflected the stance taken by the Director across the board for quite some time. Regardless of what the Director’s stance might have been all along, I am satisfied on the basis of the Director’s stance made known to this court by his counsel’s submissions that this should eliminate any risk that the decisions under CAT might be “misused” or that they might influence a decision under the USM on the applicant’s BOR 3 risk and persecution risk claims.”

Decision

52.  Having considered all the factors urged upon me by Mr Tibbo, I do not think I should extend the time for the making of this application as, in the light of the applicant’s registration with the USM on 14 March 2014, this application would not serve a practical purpose and would be detrimental to good administration if he is sent back to the TCAB for a reconsideration of his appeal.  I so hold without a consideration on the merits of the application.  I therefore dismiss the application.