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

CACV 225/2024, [2024] HKCA 902

On Appeal From [2024] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 225 OF 2024

(ON APPEAL FROM HCAL NO. 2752 OF 2018)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 21 May 2024 ([2024] HKCFI 1358)  (“the Leave Decision”)  refusing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 15 November 2018 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 13 July 2017 (“the Director’s Decision”)  refusing his non-refoulement claim.

2.  We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.  The applicant is a Togolese national.  He entered Hong Kong on 25 September 2005 as a visitor and was permitted to remain until 9 October 2005.  He overstayed and was arrested on 5 October 2009.  His refugee application in Hong Kong was rejected by the United Nations High Commissioner for Refugees in 2006 and his appeal was also rejected in 2006.  On 7 October 2009, he raised a torture claim on the basis that he would be harmed by the Togolese authorities for his past political activities in documenting their human right violations.  His torture claim was rejected by the Director on 17 July 2013.  Following the implementation of the Unified Screening Mechanism, his claim was assessed under all applicable grounds other than torture risk.  Details of the applicant’s claim were summarised by the Judge at [5] – [10] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds other than torture risk, namely BOR 2 risk[1], BOR3 risk[2], and persecution risk[3].

5.  The applicant appealed the Director’s Decision to the Board.  On 9 October 2018, the applicant, together with his legal representatives, attended an oral hearing before the Board.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [11] - [13] of the Leave Decision:

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

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

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

THE JUDGE’S DECISION

6.  On 4 December 2018, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  No ground of review was given in his Form 86.  In his supporting affirmation, he reiterated that human rights violation still occurred in Togo and that the situation had not changed since he left the country.  He disagreed with the findings of the Board that the human rights situation in Togo had improved and that it would be safe for him to return to his home country. 

7.  As the applicant did not request an oral hearing, the Judge considered his application on papers.  On 21 May 2024, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [16] – [19] of the Leave Decision:

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

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

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

Conclusion

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

THIS APPEAL

8.  In his Notice of Appeal filed on 4 June 2024, the applicant stated:

“Human rights abused still occurred in Togo and authorities still detained political prisoners without trial.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 4 June 2024, the applicant lodged his written submissions on 28 August 2024.  In those submissions, he reiterated the factual background and procedural history of his non-refoulement claim as well as his applications for a dependent visa.  He then repeated that human rights abuses and violations continued since his departure from Togo, including people being tortured or killed, the lack of state protection and the authorities engaging in arbitrary arrest.  He claimed that the government did not consistently respect judicial independence and impartiality.  He further claimed that the Togolese government delayed parliamentary and regional elections to change the constitution and that the recent constitutional changes had raised concerns about the ruling regime to perpetuate in power. 

10.  We heard the appeal on 25 September 2024.  A French interpreter was present to provide language assistance.  At the hearing, the applicant stated that he had cited various human rights reports and Legislative Council papers in his written submissions and further confirmed he had nothing to add to his written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

12.  In our view, the applicant’s allegations have no substance.  Insofar as he recites the factual background to his claim and cites various human rights reports and Legislative Council papers in doing so, we reiterate that it is not for the Court of Appeal to review the decision maker’s decision afresh.  It is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In our view, there plainly are none.  The Board comprehensively considered different Country of Origin materials including the human rights situations as well as the availability of state protection and internal relocation to the applicant: see [31] – [33] of the Board’s Decision.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  They do not constitute proper grounds of appeal. 

13.  Insofar as the applicant recounts his personal circumstances subsequent to the Board’s Decision, no documentary evidence has been provided to support his assertions, but more importantly, the applicant fails to point out how such circumstances are relevant to his intended judicial review against the Board’s Decision. 

14.  Insofar as the applicant complains about the decisions of the Director and the Board, these are not reasons as to how the Judge has (allegedly)  erred in the Leave Decision.

15.  All in all, the applicant fails to point out, with specific particulars, how the Judge has erred in any way in refusing his application for leave to apply for judicial review.  We have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

16.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.