Hounkpedji Messanh v. Torture Claims Appeal Board

HCAL 105/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 105 OF 2017

______________

______________

Before: Hon Chung J in Chambers

Date of Decision: 7 July 2017

______________________

D E C I S I O N

______________________

1.This is an application for leave to apply for judicial review. The applicant is a national of Togo who earlier made a non-refoulement claim. The claim was first rejected by the Director of Immigration (“the Director”), and subsequently by the Torture Claims Appeal Board (“the Board”). The Board is the putative respondent in this application.

2.The applicant’s Form 86 does not set out any ground on which relief is sought (contrary to the requirements of RHC Ord 53 r 3(2)(a)(iii), Cap 4A).  Further, the applicant’s affidavit in support does not verify the facts relied on (contrary to Ord 53 r 3(2)(b)).

3.The applicant’s complaints against the Board’s decision are set out in the said affidavit. In summary, they are:

(1) the Board has not researched his claims in depth;

(2) the applicant was interviewed by the Board hastily;

(3) the Board has not examined the applicant’s documents thoroughly;

(4) the applicant’s case was thereby wrongly interpreted and misunderstood.

4.The applicant entered Hong Kong in April 2013 and was permitted to stay as a visitor until May 2013.  After overstaying, he surrendered to the Immigration Department (“ID”) in May 2013, and lodged his claims for torture and non-refoulement protection with ID in July 2013.

5.The Board analysed the applicant’s claims along the lines of:

(a) the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (persecution claim);

(b) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and s 37U, Immigration Ordinance (Cap 115) (torture claim);

(c) Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) and Art 7, International Covenant on Civil and Political Rights (“ICCPR”) (cruel and inhuman treatment claim);

(d) Art 2, s 8, Cap 383 and Art 6, ICCPR (right to life claim).

6.The written decision of the Director shows the following history:

(1) the applicant joined the Alliance of National Change (“ANC”) in 2012, a political party demanding for democracy in Togo;

(2) the applicant attended ANC gatherings, and took part in movements, rallies and meetings arranged by ANC;

(3) following a series of fires in Lome and Kara, Togo in 2013, (the applicant claimed) the government blamed ANC for them, and began to arrest ANC members;

(4) the applicant began to receive mysterious anonymous telephone calls in 2013.  They were not reported to the police as the applicant believed they would not help him;

(5) one of the applicant’s friends, also an ANC member, disappeared. Before his disappearance, the friend also received mysterious telephone calls. These were not reported to the police either;

(6) the applicant then decided to leave Togo, and he left in 2013;

(7) after he left Togo, the applicant still kept in touch with his family.  His brother told him the country’s conditions remained basically the same as when he left Togo;

(8) relocation to any part of Togo was considered by the applicant to be impossible because he did not have anyone elsewhere to support him.  He also believed he could be easily located by the government.

7.By way of background, the Board noted that the present Togo government was voted into office in 2015 (and earlier in 2010) by democratic process.

8.Regarding the alleged widespread arrests/persecution, the Board concluded that the country information of Togo did not show an indiscriminate link of ANC members to the fires, but merely that specific individuals had been targeted.  The Board also concluded that the applicant is not at risk of harm so many years after the fires.

9.Regarding the mysterious telephone calls, the Board concluded that there was no threat of harm, and the applicant’s belief that he was targeted is far-fetched.

10.Regarding the disappearance of the applicant’s friend, the Board concluded, based on country information, that there was no widespread deprivation of freedom and liberty.  The Board also found the applicant’s claim to be vague, and thus inconsistent with his claimed closeness to his disappeared friend.  The applicant’s description makes the Board concluded that the friendship between him and his disappeared friend was not close, and that the applicant’s claim is unreliable.

11.It was based on the above that the Board opined at the end that the applicant’s claims should be rejected.

12.As can be seen from the above summary of the Board’s decision, the Board’s decision was far from being faulty.  Instead, the analysis was logical and adequate.  The applicant’s complaints (lack of thoroughness, acting in haste and the like) are unsubstantiated.

13.By reason of the matters set out above, I am not satisfied that this application is reasonably arguable if leave to apply for judicial review were given.  It is accordingly refused.

The applicant was not represented