COMLAN AYIKOE AKPENAMAWU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 180/2020

[2020] HKCA 1061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2020

(ON APPEAL FROM HCAL NO 248 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 10 June 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 December 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 24 February 2016 and 4 July 2017 rejecting his non-refoulement claim.

The applicant’s case

2.  The applicant is a national of Togolese Republic (Togo).  He arrived in Hong Kong on 27 September 2012 as a visitor.  He overstayed and surrendered to the authorities on 15 October 2012. He then lodged his non-refoulement claim with the Director on 6 March 2014.

3.  The applicant’s claim is based on alleged threats from the police in Togo arising out of his support of the political party National Alliance for Change (“ANC”).  His case was summarised by the Judge in [2] to [6] of the Form CALL-1^[1]. 

4.  The applicant’s case, in brief, is that on a day in August 2011, after a suppression by the police of a protest held by the ANC, he helped taking injured protesters to the hospital for treatment.  Thereafter, he was pursued by the police and notwithstanding his moving to the neighbouring country Ghana, he was informed by his family members that the police was still looking for him.  In view of the close relationship between the president of Ghana and the president of his country, he decided that he was not safe in Ghana and left for China on 17 September 2012. He then travelled to Hong Kong. 

5.  By a Notice of Decision dated 24 February 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

6.  By a Notice of Further Decision dated 4 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[5], and decided against him.

7.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 13 October 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection. 

8.  At [72] to [73] of the Board’s Decision, the Board accepted the applicant’s case that the applicant was a supporter of the ANC but did not accept that the police threatened him with death or that the applicant was himself a target. 

Application for leave to start judicial review

9.  On 15 February 2018, the applicant filed a Form 86 to apply for leave to judicially review the decision of the Board. 

10.  In his affirmation in support of the leave application the applicant deposed that:

“The [Board] took a decision in hurry. I didn’t not have a legal representation at the hearing and I believe that they didn’t not a deep research before making the decision.

Please I would like to be interviewed by the judge of the court…”

The Judge’s Decision

11.  After hearing the applicant, the Judge refused leave for the reasons set out in [13] to [19] of the Form CALL-1 :

“13. As for his complaint of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his other complaint that the Board made its decision in a hurry without any proper research, as noted above that it was just a vague assertion without particulars or specifics or elaboration how it was so, and upon close examination of the COI referred to and considered by the Board relevant to his claim, I am unable to find any basis or merits in this complaint of the Applicant.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 59 – 74 of its decision and with the benefit of hearing him in oral evidence and in answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

12.  By a Notice of Appeal filed on 15 June 2020, the applicant appealed the Judge’s order to this court. 

13.  In the Supplementary Notice of Appeal filed on 6 August 2020, the applicant stated as follows:

“I can not go back to my country. My Country current situation doesn’t not change as we have the same President who is on his four term of ruling now. The abuse of human right and violation of the country constitution still occurred.”

Skeleton Submissions

14.  The applicant filed a skeleton submission dated 12 November 2020 which was written in French.  A report from the Amnesty International entitled “Togo Human Rights – A Long Way To Go” which was written in English was attached to the skeleton submission.  As the applicant did not provide an English translation of the skeleton submission, we asked the interpreter to read out the content of it in English at the hearing.   In his skeleton submission, the applicant stated that the political situation in his country has not improved at all.  He referred to 3 reports^[6]on the human rights situation of Togo and submitted that there are grave violation of human rights happening in Togo including killing and torturing of people by the government; arbitrary arrest and imprisonment of people by the police; restricting citizens’ right to protest and manipulated elections.  To a certain extent, the attached report verified what the applicant stated regarding the human right situation in Togo. 

15.  At the hearing, the applicant said he has nothing to add apart from what was set out in his skeleton submission.

Legal Principles

16.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

17.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.   

18.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration^[7] and we will not repeat them here. 

19.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong^[8].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall^[9] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Discussion

20.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

21.  We are of the view that the matters stated in the Notice of Appeal and the Supplementary Notice of Appeal do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

22.  Regarding what was stated by the applicant in his skeleton submission, we are of the view that it does not advance the applicant’s appeal.  The applicant did not refer to any of the human rights reports and the matters mentioned in the skeleton submission before the Judge in the leave application.  If there are changes in the circumstances or new information that are material to his case for non-refoulement, the applicant may consider providing the information or new evidence to the Director, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap 115. 

23.  As we have pointed out, this Court’s focus in this appeal is the correctness of the Judge’s decision in the light of the materials that were before him.  What the applicant said in the skeleton submission does not go to show that the Judge had erred in his decision.

24.  In any event, we have reviewed both the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

25.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.