Hounkpedji Messanh v. Torture Claims Appeal Board

CACV 164/2017

[2018] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2017

(ON APPEAL FROM HCAL NO 105 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Chung J on 7 July 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Togo to Hong Kong as a visitor on 28 April 2013. He overstayed since 13 May 2013 and surrendered himself to the Immigration Department on 28 May 2013. On 26 July 2013 he lodged a non-refoulement claim. The claims were based on alleged fear of harm from the Togolese government by reason of his membership of an opposition party called ANC.

2.The Director decided against the claims on 24 May 2016.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a supplemental decision of 5 January 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 23 January 2017, the Board dismissed the appeal on 2 March 2017.

4.The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 29 March 2017 did not contain any ground for seeking relief.  In his affidavit of 29 March 2017, he relied on the following grounds:

(a)   Lack of legal representation before the Board; and

(b)   The Board did not examine his documents adequately and he believed his claim was wrongly interpreted and misunderstood.

5.The judge reviewed the materials carefully.  He gave the following reasons in refusing leave at [6] to [13] of the written decision of 7 July 2017:

“ 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.”

6.In the notice of appeal of 20 July 2017, the applicant advanced the following as his ground of appeal:

“ Mr Justice Chung decision of refusal of my leave to apply for judicial review was only based on the conclusion of the Torture Claims Appeal Board.”

7.The applicant agreed by a letter of 25 July 2017 that the appeal can be heard by two judges.

8.Before the hearing on 10 January 2018, he did not lodge any written submissions in accordance with Practice Direction 4.1 and the directions of the Registrar of Civil Appeals of 18 September 2017.

9.We heard the appeal initially on 10 January 2018. Due to the inability to procure a Togolese interpreter for that hearing, we adjourned the appeal after hearing the applicant with the assistance of a French interpreter. He was directed to lodge written submissions. He did so by a letter of 23 January 2018, the contents of which were fully considered by us.

10.We resumed the appeal on 13 March 2018 with a Togolese interpreter.   

11.After due consideration of the arguments of the applicant, we conclude that the appeal has no merit.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the primary decision maker is still the Board.  The court should not usurp the role of the Board.  The judge rightly focused on the reasoning of the Board as opposed to conducting his own examination of the materials as if he was the primary decision maker.  After a careful review of the reasoning of the Board, the judge found no cause for intervention by the court.

12.As regards the challenge based on lack of legal representation, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration by the immigration officer.

13.Having considered the appeal of the applicant in light of the materials before us, we found the judge’s conclusion to be justified.  Having read the careful decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion that there is no substantial ground for believing the applicant to be in danger of being subjected to torture if returned to Togo; he is not at risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment; he would not be exposed to a real risk of violation of his right to life; and he does not have a well-founded fear of persecution. At [36] to [39] of the decision of the Board, careful consideration was given to the relevant country of origin information [“COI”] regarding Togo, including the information identified by the applicant. In the letter of 23 January 2018, the applicant wrongly suggested that the Board relied on an out-dated report from Amnesty International regarding Togo (the Board did not refer to any report from Amnesty International). He further contended that the report of Amnesty International for 2016/17 shows that cases of torture and other ill-treatment continued in Togo. He produced that report at the hearing and we have regard to it. We have also read the report for 2017/18. We can find nothing in these reports to cast doubt on the finding of the Board as to the risk of him personally being subjected to torture or cruel, inhuman or degrading treatment or punishment or being exposed to a real risk of violation of his right to life.We do not find anything in these reports to invalidate the Board’s finding that the COI did not establish a pattern of disappearances for ordinary members of the ANC.  

14.At the hearing on 13 March 2018, the applicant suggested he had other unspecified documents concerning 2013/14 to support his case. He did not have those documents ready at the hearing. In any event, if they were documents of 2013/14, he should have produced them to the Board or the judge. Though the Court recognizes the practical difficulties faced by a torture claimant in procuring relevant evidence, it does not mean that such a litigant can completely disregard the limitations of an appeal process and the procedural rules applicable to an appeal. The rule in Ladd v Marshall[1] limiting the circumstances under which fresh evidence can be admitted on appeal is still generally applicable in an appeal of this nature though the Court may relax it if there are exceptional circumstances warranting the same.

15.In the present case, the applicant was unable to show us copy of the documents even as late as the second hearing of this appeal. There is no way that we can assess the cogency and probative value of those documents. Nor did he give us satisfactory explanation for not producing such documents to the Board or the judge below. He could not give us a definite date for such documents to be available. For all we know, if we accede to such late request for production of additional documents, the determination of the appeal would have to be postponed indefinitely. We cannot see any basis for exercising the discretion in favour of the applicant in this regard.       

16.We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

17.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.

The applicant appearing in person