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

HCAL 202 /2019

[2023] HKCFI 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 202 OF 2019

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J U D G M E N T

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INTRODUCTION

1.  This is the hearing of the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 26 July 2018(the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) dated 29 March 2017 refusing his application for non-refoulement protection under the Unified Screening Mechanism (“USM”).

2.  The Applicant is a national of the Republic of Congo (“Congo”).  He left Congo and arrived at Hong Kong on 28 November 2008.  He presented a false passport and was denied landing.  On 29 November 2008, he made a claim for non-refoulement protection to the United Nations High Commissioner for Refugees (“UNHCR”).  Subsequently, he filed a non-refoulement claim by way of a written representation under the USM on 28 March 2014.  He submitted his Non-refoulement Claim Form (“NCF”) detailing his claim on 14 October 2016 and attended a screening interview on 25 November 2016.  His claim was dismissed by the Director in his Notice.  His appeal against the decision in the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for leave to apply for judicial review of that Decision.

THE APPLICANT’S CASE OF NON-REFOULEMENT

3.  The thrust of the Applicant’s case as asserted in his NCF is that he was arrested and tortured by the Comus Military Brigade (“CMB”) because of his brother’s association with a rebel group in Congo.  The CMB or the Direction Generale de la Securite Presidentielle (“DGSP”), as it is now called, is a special force of the government.  In December 1997, the CMB, came to the Applicant’s home to look for his brother. His brother was not at home.  The officers left.  A week later, they came again and enquired about his brother’s whereabouts. As the Applicant and his family could not provide any information, the officers arrested the Applicant.

4.  The Applicant was detained and tortured in Bacongo prison for over a year.  He was then transferred to Kombo prison where he was held and tortured for one to two years.  The conditions in both prisons were appalling with poor hygiene, insufficient food and overcrowding.  The Applicant was tortured by prison guards and officers of the CMB for the purpose of extracting information about his brother, but he could not provide any.  He was beaten on his feet and sole and kicked or fisted two or three times a week. His feet became swollen and he could barely walk.

5.  One day in 1999 or 2000, Colonel Patrick of the prison helped him to escape.  He was led blindfolded from the prison and taken to a house.  From there Colonel Patrick drove him to Moukondo.  Then he walked for an hour and half to his friend’s home in La Base.  He kept a low profile and stayed hiding there for about two years living on his friend’s support.  On learning from the neighbours that the CMB were searching for him in La Base, he moved to Pointe Noire to stay with a maternal uncle.  His parents told him that the CMB came to his home in Bacongo on a regular basis looking for him.

6.  In around 2004, his elder brother called the Applicant and confirmed that he was a rebel.  He suggested the Applicant to seek protection in Hong Kong.  In 2008, his maternal aunt raised HK$20,000 to arrange for his trip to Hong Kong.  She also arranged a Congolese passport under another identity to ensure he could leave Congo safely as a warrant had been issued for his arrest since 1997.

7.  Since 2014, the Applicant gave up the connection with his maternal aunt to avoid causing her further troubles.  The CMB/DGSP had never harmed his family members.  They only looked for him and his brother.  He did not want to return to Congo because he thought his life will be in danger and did not expect he could obtain assistance from the authorities because his brother was a rebel.

THE BOARD’S DECISION AND FINDING

8.  In paragraphs 1 to 8 of the Decision, the Board set out the background, the Applicant’s case and the Director’s case.  It correctly identified the legal issues raised by the appeal in paragraphs 9 to 16.

9.  In paragraph 17, the Board said that while the Director rejected the Applicant’s account as incredible, the Board was also handicapped by the Applicant’s poor mental health from testing the credibility of that account.  In paragraph 18, it set out three facts which appear to be its finding of fact based on which it assessed the Applicant’s claim.  These are: (1) that the Applicant lived in Congo for a further eight years after escaping from prison and before departing Congo; (2) that during that period of time, the Applicant faced no problems and moved between different places; and (3) that the Applicant was not in a position to explain why he chose to depart Congo at that particular point in time.

10.  After stating the legal principles applicable to the persecution risk ground in Paragraph 19, the Board indicated in Paragraph 20 its acceptance of the Applicant’s account of being arrested and detained because of his brother and not for his action (the fourth fact).  From this fact and its finding in paragraph 18, the Board made a further finding that the Applicant was not being sought because of his profile and is of no interest to the authorities (the fifth fact).  Based on these facts, it concluded that the Applicant had failed to establish he had a well-founded fear of persecution in Congo.

11.  The Board then cited the legal principles applicable to the BOR 2 risk ground and BOR 3 risk ground in Paragraphs 21 to 27 and concluded in Paragraph 28 that “for the reasons adduced above” the Board found there was no real risk to the Applicant’s right to life and no prospect that he would face torture or cruel, inhuman or degrading treatment or punishment.  “The reasons adduced above” must mean the five facts identified in the preceding paragraphs.

12.  Similarly, the Board quoted the legal principles applicable to the torture risk ground in Paragraphs 29 and 30 of the Decision and found in Paragraph 31 that there was no evidence of severe physical or mental pain to the Applicant (the sixth fact); and did not accept that he would still be targeted by the CMB/DGSP for his brother’s association with the rebel group in the past after twenty years (the seventh fact).  The Board then concluded that there is no real risk that the Applicant will suffer persecution now or in the foreseeable future if returned to Congo; and therefore the Applicant had failed to establish a well-founded fear of persecution for a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  It is noted that the Board’s discussion in Paragraphs 29 and 30 is related to the torture risk ground, but its conclusion in Paragraph 31 is related to the persecution risk ground which it had already disposed of in Paragraphs 19 and 20 of the Decision.  This Court assumes that reference to persecution risk and Convention reasons in Paragraph 31 is slip of the pen rather than error of law.

13.  In Paragraph 32, the Board made the observation that the Applicant does not claim that a consistent pattern of gross, flagrant or mass violations of human rights exists in Congo and has not adduced any evidence in support of that contention and the Country of Origin Information does not support that claim.

GROUNDS OF JUDICIAL REVIEW

14.  The Applicant advanced the following two grounds of judicial review:

(1)  the Board’s failure to adjourn the oral hearing was procedurally unfair; and

(2)  the Board failed to give adequate reasons for refusing the Applicant’s non-refoulement claim.

THE APPLICANT’S CASE OF JUDICIAL REVIEW

15.  The Applicant developed psychiatric problem caused by the ill-treatment soon after his arrival in Hong Kong.  He had been receiving psychiatric treatment from mental health service of the Hospital Authority since December 2009.  At the oral hearing, he was suffering psychiatric symptoms.  When the Board proposed to ask him questions, he explained to the Board that he was suffering from a brain problem and could not think clearly.  He said that he was not ready to proceed with the hearing due to his mental condition and produced the medication he was prescribed and an appointment slip to the Board.  The Board, however, pressed ahead.  The Applicant repeated that he was not ready.  Eventually, the Board indicated that it would record the Applicant’s mental health situation in the Decision and would proceed to make a decision based on the evidence that the Applicant had already given.

16.  Despite its acceptance that the Applicant’s mental health was sufficiently serious that he was not fit to be examined and that his case could not be tested, the Board went on to determine his claim and made adverse finding against him leading to dismissal of his appeal.  Hence, the Board was in breach of the high standard of fairness in failing to adjourn the hearing to obtain relevant medical evidence on his mental health condition so that it could be informed of his mental condition and the extent to which he could participate in the oral hearing.

17.  The Applicant complained further and in the alternative that by reason of the Board’s procedurally unfair approach, there was a resultant failure by the Board to give any or any adequate reasons for dismissing the Applicant’s non-refoulement claims on all grounds.

THE HIGH STANDARD OF FAIRNESS REQUIRED IN AN ORAL HEARING

18.  Section 12 of Schedule 1A to the Immigration Ordinance gives the Board the discretion to determine an appeal without a hearing, if having regard to the material before it and the nature of the issues raised, it is satisfied that the appeal can be justly determined without a hearing.  Where a legislation confers an administrative power there is a presumption that this power will be exercised in a manner which is fair in all the circumstances.  It is trite principle that high standards of fairness must be observed by a decision-maker when assessing a non-refoulement claim where life and limbs of the asylum seeker are in jeopardy and his fundamental human right not to be subjected to torture is involved: see Secretary for Security v Sakthevel Prabakar[1]. As was held by Lord Mustill in Secretary of State for the Home Department, ex parte Doody[2], what fairness requires is essentially an intuitive judgment. The standards of fairness are not immutable.  Very often, fairness will require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf.  An opportunity to make worthwhile or effective representations is an important requirement of fairness in most if not all situations.  Many of the rules of fairness are evolved from this basic principle, such as holding an oral hearing to hear the claim of a person who is likely to be affected by the decision-maker’s decision and the rules of fairness to be observed in such hearing.

19.  This principle is incorporated in paragraph 8 of the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board[3] (“Practice Directions”).  Paragraph 8.1 of the Practice Directions states that the purpose of holding an oral hearing is not only to assist the Board in its decision-making, but also to reflect the appellant’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.  Paragraph 8.3 recognises that an appellant has no absolute right to an oral hearing, but stresses the importance of affording him the opportunity to make worthwhile or effective representation as part of the requirement of fairness in such a decision-making process.

20.  Paragraph 8.4 of the Practice Directions quotes the presence of material factual dispute which cannot be decided on paper as an example when an oral hearing is called for.  It reminds the Board that the converse is not necessarily true.  Depending on the circumstances, even when all facts are agreed, the high standard of fairness would require the holding of an oral hearing.  The paramount consideration is to achieve a just decision.

21.  Paragraph 8.5(a)(ii) reminds the Board that the high standard of fairness requires the Board to draw the appellant’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the appellant, but there is no duty to keep on probing or inquiring where the objective circumstances make it reasonably clear that the appellant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to show.

22.  Paragraph 8.5(b) emphasises the need to give the appellant an opportunity to be heard orally or in further writing where the Board considers there is anything which is material to the determination of the appeal and which the high standards of fairness requires.  The Board should take the most effective and fairest way to approach the concern in question.  Examples where an oral hearing or further written representations are required include where there is any point, factual or legal, on which the Board is not sure; or which has not been dealt with adequately or at all; or the materials placed before the Board calls for some further probing, questioning or inquiry, particularly if the absence of such further probing, questioning or inquiry would lead to the Board drawing an inference adverse against the appellant.

SOME OBSERVATIONS ON THE BOARD’S DECISION

23.  The two grounds are intertwined.  Perhaps, out of respect for the Board’s position as the sole arbitrator of fact, Ms Souza, counsel for the Applicant, dealt with the first ground first.  But in the Court’s view, it would be more convenient to deal with the second ground first as the Court’s view on the second ground would lay the foundation for the conclusion on the first ground.

24.  The Decision is remarkably concise.  The Applicant’s case is summarised in three paragraphs of half a page (ie Paragraphs 5 to 7).  The criticism is not about brevity of the summary, but its nature and extent reflecting an absence of a just and fair consideration of the entirety of the Applicant’s case.  The concern is whether it fully summarises the material facts relied on by the Applicant.  It is not necessary for the Board to quote all the allegations made or evidence given by the Applicant in his NCF or screening interview in its summary. For brevity reasons, irrelevant allegations, allegations which are accepted by the Board by implication and allegations which are subsequently discussed by the Board in its analysis of the evidence need not be mentioned.  But allegations which are rejected or contrary to the Board’s finding of fact but not discussed in its analysis of the evidence need to be mentioned to show at least that it has been considered and the reason for its rejection.  The Board’s finding in respect of these allegations are usually material facts in dispute.  Without such mention, there is no way the Applicant could know if the Board has taken all relevant matters into consideration in its Decision.

25.  The Board’s finding of fact are contained in Paragraphs 18, 20, 28 and 31 of about half a page.  Again, the concern is not about the brevity, but the inadequacy.  There is no discussion of the evidence and no mention about the contrary allegations in Applicant’s case.

26.  In Paragraph 18, the Board found the Applicant had no problems living in Congo and moving between places for eight years after his escape from prison.  No mentioned was made in the Board’s summary that he hid in his friend’s home in La Base, painted his face with black stripes (impliedly to avoid recognition), kept a low profile, that his parents told him the CMB came regularly to his home looking for him and that his neighbours in La Base told him that the CMB were looking for him.  The contrary evidence explains why there were no problems or impliedly suggests that but for the care taken there would have been problems.

27.  The Board held that the Applicant was not in a position to explain why he chose to depart Congo at that particular point in time.  But no mention was made in its summary that the Applicant’s aunt worked hard during the four years since the idea to come to Hong Kong was born to raise HK$20,000 for his passage.  That, in my view, is a plausible explanation.

28.  In Paragraph 20, the Board found for the reasons mentioned in Paragraph 18 and the additional reason that it was the Applicant’s own evidence that he was detained because of his brother that he was not being sought because of his profile and he is of no interest to the authorities.  Though the Applicant was not directly sought for his political involvement, there was no discussion about his involvement as perceived by the CMB by reason of his relationship with his brother.

29.  In Paragraph 28, the Board found “for the reasons adduced above”, there is no real risk to the Applicant’s right to life etc.  This finding is subject to the same criticisms mentioned in Paragraphs 27 and 28 above.

30.  In Paragraph 31, the Board found there was no evidence of severe physical or mental pain to the Applicant.  While there was mention in the Board’s summary about the Applicant having been tortured while in prison custody, no mention was made as to the nature, extent and frequency of the torture.  There was no mention that he was beaten once every two or three days with baton, that he was kicked or fisted by the prison guards or CMB officers, that his feet and sole were swollen and he could barely walk, that there was no medical treatment for his injury or when he fell sick, that no food was provided, and that the hygiene and overcrowded condition in the prison were appalling etc.  The Board also made no mention of the cumulative effect of such ill-treatment over a period of three to four years.  There was no discussion why this evidence was rejected or not given any weight or if it was accepted why it did not amount to severe physical or mental pain.

31.  The Board said it does not accept that the Applicant will still be targeted by the CMB/DGSP after twenty years or that there is a real risk that he will suffer persecution now or in the foreseeable future if returned to Congo.  But no reason was given for these conclusions.

32.  The Board’s summary as compared with this Court’s summary in Paragraphs 3 to 7 of one and half pages even after allowing for the difference in font size is woefully inadequate.  In the Board’s summary of the Applicant’s case, there was no mention about all these contrary evidence.  With that summary, the Decision gives a reader on a first reading an impression that the Decision was just an assessment of the Applicant’s claim on the basis that there is no material dispute of facts.

33.  The Board’s finding as compared with the Applicant’s case as summarised by this Court amply demonstrates that there are material factual disputes.  When the Board said in Paragraph 17 that the Director had rejected the Applicant’s case as incredible and that it was not possible to test the Applicant’s evidence, it impliedly recognised there are material factual disputes and credibility issues raised by the appeal.  But there was no analysis or discussion in its Decision about these contrary evidence.  The Board must have either ignored or failed to take them into consideration in its determination or rejected them as incredible.  In the former scenario, the determination is arguably the result of an error of law and procedurally unfair.

34.  Alternatively, the Board may have rejected these allegations as incredible.  But no reason was given for rejecting the evidence.  There was no finding of credibility against the Applicant.  Under such circumstances, the Board would have to proceed to analyse and assess the Applicant’s claim against all applicable grounds on the basis that his case is plausible: see Re Hidayah[4]. But the Board did not.  It is therefore at least arguable that the Board’s finding is an error of law and procedurally unfair. The issue of procedural unfairness will be further discussed under the first ground below.

WHETHER THE BOARD’S FAILURE TO ADJOURN THE ORAL HEARING WAS UNFAIR

35.  The following is an account of what happened at the hearing as revealed by the transcript.  It tallied the Applicant’s complaint.  After the interpreter had sworn or affirmed, the Applicant informed the Board that he was suffering from mental illness and produced some of his medicine and an appointment slip with Castle Peak Psychiatric Hospital.  Then the Board said it would make the hearing short and asked some introductory questions, pointed out the two major reasons why the Director refused the Applicant’s claim and told the Applicant that it wanted to ask him some questions.  At that point, the Applicant responded saying he was suffering from mental illness and repeated his reason for bringing and showing the medicine and appointment slip to the Board.  The Board explained that its job was not to look at his mental condition but to decide if there was a risk to the Applicant in Congo.  It asked the Applicant what he wanted the Board to do about his case.  It repeated that it need to ask him questions and if he was ready.  The Applicant repeated his mental health situation.  But the Board pressed ahead and told the Applicant to listen to its questions and think about them carefully.  The Applicant again replied that he could not think clearly because he was sick and not ready and not that he refused to answer.  Eventually, the Board said it was going to record the Applicant’s mental health situation and make a decision based on the evidence he had already given.  That concluded the hearing.

36.  Altogether, the Board made four attempts to ask the Applicant questions.  When the Applicant indicated he was not ready because of his mental illness, the Board rhetorically asked three times how the Applicant wanted the Board to make a decision on his appeal.  Eventually, when its fourth attempt failed, the Board concluded the hearing.  The possibility of an adjournment was not discussed.

37.  Having regard to the Decision, defective though it may be, it is clear that there are material factual disputes between the Applicant and the Director and that this appeal raises the important issue of the Applicant’s credibility and the need to test his evidence.  As was impliedly recognised by the Board in Paragraph 17 of its Decision, such disputes cannot be determined on paper.  Thus, if the Board chose to proceed on the basis of the evidence the Applicant had presented, as it claimed, it should have adhered to its promise.  It should have, following Re Hidayah, assessed the Applicant’s claim on the basis of his case.  For reasons as discussed in the preceding section, it did not.  As I have demonstrated, it accepted part of the Applicant’s evidence on some primary facts which it is entitled to, but ignored or rejected other evidence on material facts.  Had it accepted all the evidence on primary facts, it would have been open to the Board to decide the weight to be attached to each piece of evidence, resolve any inconsistencies in the evidence and make further finding of secondary facts, provided the material disputes could be resolved on paper.  Again, as I have shown, it did not. There was no analysis or discussion on the evidence in the four paragraphs relating to finding of fact.  There was nothing to suggest that the material factual disputes were resolved on paper or could be resolved on paper without a hearing.  As illustrated in Paragraphs 26 to 30 above, the Applicant’s evidence at least calls for further clarification before the Board could fairly reach its finding of fact.  Despite that, the Board proceeded to make an adverse determination against the Applicant.  It did so without letting him know there were potential credibility issues and that his credibility would be impeached if he did not answer the Board’s questions.  It did not give him an opportunity to make worthwhile or effective representation.  These are important safeguards which the high standard of fairness requires a decision-maker to take on behalf of the asylum seeker whose life or limbs are at stake.

38.  The Applicant is a psychiatric patient known to the psychiatric service of the Hospital Authority since December 2009.  He produced some progress reports and consultation summaries from the Hospital Authority since October 2012.  Though these evidence were not before the Board, the Board was shown his medicine and an appointment slip.  As indicated in Paragraph 17 of the Decision, the Board accepted the Applicant had a mental health condition which was at least sufficiently serious for the Board to come to the view that he was not fit to be examined “on account of his vulnerability owing to his poor mental health”.

39.  The Board had not considered adjourning the hearing to call for a medical report on the Applicant’s mental health condition and to await improvements in his mental health condition, but decided to make a determination based on the evidence the Applicant had presented before the Board.  I can see the wisdom in the Board’s choice not wait as the Applicant has a long history of illness since 2012 (if not 2009 as was then known to the Board).  The wait could be endless.  But there are important material factual issues in dispute and the Applicant’s life and limbs are at stake.  There are alternatives. The Board could have exercised its authority under section 37ZC of the Immigration Ordinance to call for a medical report on the diagnosis, prognosis, degree of the Applicant’s mental illness and the extent to which he can present his case; and to advise the Board on the approach going forward.  There is guidance in the UNHCR Handbook on different techniques of examination of mentally disturbed persons.  The Board can also make enquiries from the Applicant’s relatives.  His brother and his wife who is a Filipino are in Hong Kong.  This Court understands that there are limitations and practical difficulties in these alternatives.  However, as the Board recognised, the human rights record in Congo is appalling and there could clearly be serious consequences to the Applicant if it erred in concluding there is no need for protection for the Applicant.

40.  The Applicant has a legitimate interest or expectation to have his claim determined in an oral hearing so that he can participate in a decision which has serious and important implications on him. The high standard of fairness requires an oral hearing to be held unless either the Board is prepared to determine his appeal on the basis of his case as presented to the Director as the Board had indicated that it would or in the absence of adverse finding on his credibility that his case is plausible.  This right is not to taken from him without cause.  His mental health condition, without more, cannot justify depriving him of this right.

41.  It is likely that the Applicant is suffering a psychiatric condition.  To require him to answer the Board’s question under such condition may disable him from effectively participating in the oral hearing and lead to an unjust result.  To deprive him the right to an oral hearing is equally, if not more, unjust.  On the other hand, the fact that he was suffering some symptoms at the time of the hearing does not necessary mean he does not have the mental ability to conduct this litigation there and then or will not have the ability to do so after a not unreasonably long adjournment. There was no particular need for an urgent decision.  The material factual disputes were not and could not be resolved on paper.  On balance, the possibility of an adjournment for calling for a medical report to inform the Board of the Applicant’s mental condition and advise the Board the way forward should have been considered.

42.  Despite that, the Board proceeded and made an adverse determination again the Applicant without letting him know there were potential credibility issues and that his credibility would be impeached if he did not answer the Board’s questions.  It did not give him an opportunity to make worthwhile or effective representation.  These are important safeguards which the high standard of fairness requires a decision-maker to take on behalf of the asylum seeker whose life or limbs are at stake.  Though the Board said the Applicant agreed with its proposal to determine his claim on the basis of the evidence he had presented, that does not release the Board of its burden to maintain the high standard of fairness or in any way reduce its burden or lower the standard.

43.  It is therefore at least arguable that it was procedurally unfair for the Board to make a determination without first adjourning the hearing and calling for a medical report so as to determine the course to take; and to make the adverse Decision against the Applicant without affording him the opportunity to make a worthwhile or effective representation in an oral hearing.

CONCLUSION

44.  For the above reasons, leave is granted to the Applicant to apply for judicial review on the two grounds as stated in the Form 86.