Nk v. Lam Kui Po William Deputy Chairperson of the Torture Claims Appeal Board
Read the full judgment text of HCAL 18/2016 on BabelCite. This High Court CFI judgment was delivered on 4 July 2016.
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).
Cited by 1 case · Cites 4 cases
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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 ___________________ 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:
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.
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):
11.Grounds (7) and (8) are on the issue of Internal Flight Relocation:
12.Ground (9) is an omnibus ground containing materials already covered by the grounds above:
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:
14.Grounds (10) and (12) should be read together. They are on the denial of an oral hearing:
15.Ground (11) asserts that the respondent should have procured psychological and psychiatric reports on the applicant.
16.Finally, the last ground puts the blame on the DLS assigned lawyer as follows:
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.
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:
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):
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.
Mr Robert Tibbo, instructed by Ho, Tse, Wai & Partners, for the applicant | |||||||||||||||||||||||||||||||||||||||||||||||||
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