K v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 78/2017

[2018] HKCFI 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 78 OF 2017

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Before: Deputy High Court Judge Woodcock in Court

Date of Hearing: 18 January 2018

Date of Judgment: 21 March 2018

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J U D G M E N T

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1.This is an application for leave to apply for judicial review of a Torture Claims Appeal Board decision. This applicant is a national of the Central African Republic (“CAR”) who arrived in Hong Kong on 13 August 2013 but overstayed since 28 August 2013. His non‑refoulement protection claim was rejected by the Director of Immigration (“the Director”) on 8 January 2015 and 10 April 2017 (this date relates to the BOR 2 risk claim). The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 9 October 2015 (“the 1^st appeal”) and rejected it on 1 December 2016. The applicant then appealed against the Director’s decision in respect of the BOR 2 risk in April 2017 (“the 2^nd appeal”) and the TCAB rejected the 2^nd appeal on 26 July 2017.

2.The applicant filed a notice of application for leave to apply for judicial review (“Form 86”) on 15 March 2017 and requested an oral hearing.  This applicant was granted an anonymity order on 3 March 2017 and subsequently granted legal aid.

Background

3.The basis of the applicant’s claim was that if he was to return to CAR he would be harmed or even killed by a rebel coalition group, the Seleka, because he was a member of the Kwa Na Kwa (“KNK”) party which was previously in government but overthrown by the Seleka and he feared a rebel leader called Mohamed because he had an affair with his fiancée.  Mohamed later became a government minister. Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in full in their decisions as did the applicant in his amended Form 86.

4.The applicant was born in 1980 into a Christian family which was very active in the KNK, the ruling party of the former CAR president François Bozize.  The president’s wife was the applicant’s father’s cousin and the families were close.  The applicant’s three brothers were members of the party and held senior positions.  In 2005, the applicant joined the party and was active in mobilising the youth and working with the president’s sons.

5.On 24 March 2013, there was a coup d’etat led by predominantly Muslim rebel militias called the Seleka.  They targeted those active in the KNK and KNK supporters.  The applicant hid in a church on that night for several weeks and went into hiding before he fled the country dressed as a woman along with several other members of his family.  He heard that his shop, restaurant and house were destroyed by the rebels and even a member of his staff was killed.  There were stories of the rebels looting and destroying people’s assets as well as killing, raping and torturing KNK supporters.

6.Since the coup, pro‑Bozize and pro‑KNK Christian groups have formed and led counter-attacks against the Seleka which has led to violence, chaos and social and political instability in CAR since March 2013.  In December 2013 clashes between the two groups led to the killing of nearly 1000 civilians which prompted an international outcry and the resignation of Seleka president Michel Djotodia.  There was a ceasefire signed in July 2014 which the applicant believes is not genuine and trustworthy.

7.Since 2013, more than 5000 people have died in the violence and over 450,000 people have fled the country and become refugees in neighbouring countries.  Some 400,000 have become internally displaced.  The violence and political instability still continues now as of 2017.

8.The applicant personally based his claim on his real and former support of the ousted president as well as his known active membership of the former ruling party.  This included his political stance as a member of that party.  He was a Christian targeted by the Muslim Seleka militia and was a supporter of the pro‑Bozize forces.

9.In 2005, the applicant had started to date a Christian girl called Sonia without knowing that she was already engaged to a man called Mohamed.  At that time, he was a Red Cross co-ordinator. The applicant first met him in 2006 or early 2007 when he blamed the applicant for breaking up his relationship with Sonia.  There was a verbal altercation but not a physical one.  He came across Mohamed again in mid-2007 in a nightclub where he was confrontational but the security stepped in and the applicant left before it became physical.  He has received many phone calls in the past from Mohamed that were insulting and heated.

10.Sonia told the applicant that after 2007, Mohammed joined the Seleka and became the Minister of Water and Forestry after the coup.  He was however arrested and imprisoned because it was rumoured he did try to take over from and oust the leader of the Seleka.  He was released after the resignation of the Seleka president.  The applicant is afraid of Mohamed because he will still and always want revenge over Sonia.

The TCAB decision

11.The adjudicator of the TCAB (as did the Director) analysed the applicant’s claim under grounds (a), (b) and (c) in the December 2016 decision and ground (d) in the July 2017 decision, see below;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A (2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

12.The adjudicator of the TCAB conducted an oral hearing for the 1^st appeal decision but not the 2^nd appeal decision; that was assessed on the papers despite a hearing request from the applicant’s legal representative.  The adjudicator is required to treat the appeal/petition as a rehearing.  It requires a fresh and independent decision of the claim to be made by the adjudicator; X v TCAB HCAL 143/2013, 4 September 2014 Zervos J §29.  The adjudicator does not discharge an appellate role.  The applicant was represented during the appeal but not by the same legal representative who represented him before the hearing before the Director.

13.It was part of his grounds of appeal that when the applicant was assigned a new legal representative from the Duty Lawyer Service, his case was looked at more in-depth and a notice of new evidence as well as an additional statement from the applicant with exhibits were served on the Director on 12 August 2015.  An explanation was given to the Director as to why the evidence was not made available to the immigration officer earlier.  A request was made that the evidence should be admitted in accordance with the high standards of fairness applicable in these cases.

14.This new evidence came after the rejection of his claim by the Director but before the 1^st appeal hearing before the TCAB.  The adjudicator did make reference to it at paragraphs 34 and 35 of his decision and suggested that the applicant had researched the history of the political events in CAR and lied he was a part of it.  The adjudicator did not believe his explanation as to why it was not referred to earlier in his claim.

15.Other than this issue of credibility, the adjudicator does not make any other findings of credibility.  He finds on the applicant’s own evidence and facts that he cannot make out a case in respect of the applicable grounds; be it torture or CIDTP under BOR 3, or the torture risk or the persecution risk or later, a violation of his rights under BOR 2.  He found the applicant’s claim for non-refoulement protection failed on all applicable grounds and confirmed the decision of the Director.  He found that the applicant could locate internally especially if he did not go back to Bangui.

Leave to apply for judicial review

16.In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.  The applicant’s claim and grounds need to show that his application is reasonably arguable and will enjoy a realistic prospect of success as proposed in Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.

17.There are four grounds of review;

(1) an error in law – applying the wrong legal test to the persecution risk;

(2) an error in law – requiring the applicant to provide corroborating evidence;

(3) procedural irregularity – a failure to properly consider the Country of Origin Information (“COI”) conditions of CAR; and

(4) procedural irregularity – a failure to properly consider relevant factors for viable internal relocation.

Ground 1

18.Mr Randy Shek, Counsel for the applicant, takes issue with the adjudicator’s assertion that the test for assessing persecution risk is “virtually the same” as that for assessing BOR 3.  To invoke the protection of Article 3 or BOR 3 risk, the applicant has to meet two requirements.  The adjudicator here has stated the test for assessing the persecution risk is virtually the same as that for assessing BOR 3.  He also says when assessing persecution risk, I quote “the appellant has (not) suffered severe injury or serious harm which would place him within the criteria of persecution.”  The adjudicator has applied the wrong legal test and that statement cannot be accurate; an applicant does not have to have suffered severe injury or serious harm in the past in order to bring himself within the definition of persecution.  It is true that the most recognised form of persecution is the infliction of physical harm including torture and kidnapping as best examples but not the only form.

19.The applicant must establish he has a well-founded fear at the time his claim is being assessed; good grounds for fearing persecution in the future.  He must establish that he has a subjective fear of persecution and also that the fear is well-founded in an objective sense.  Evidence of past persecution is one of the effective means of showing that a fear of future persecution is objectively well-founded.  If there is a pattern of long-standing persecution, then there is a likelihood that the behaviour will continue.  However, severe injury or serious harm is not a necessary factual element to establish persecution.

20.Mr Shek summarises in his skeleton submissions the adjudicator’s reasons for rejecting the applicant’s persecution risk but also his claim under the torture risk and submitted the adjudicator has failed to consider the applicant’s risk profile properly because he placed an undue emphasis on whether the applicant had suffered any previous harm and whether he was personally targeted.  He failed to consider whether the applicant was subject to persecution for his political opinions or those imputed upon him because of a close and personal relationship with Bozize, and the cumulative effect of these facts.

21.The adjudicator has applied the wrong test to the persecution risk and simply stating that he applied the same reasons to the persecution risk that he applied to the torture risk is inadequate and plainly wrong.  The submission from Mr Shek is that there is insufficient analysis of the applicant’s case which was that he did face a risk of persecution for at least  his political opinion, if not membership of a political party and if his evidence had been considered properly and thoroughly then the adjudicator should at least have set it out and given reasons why it failed to come within a Convention ground.

22.Mr Shek submits a failure to take into account relevant information such as his documentary evidence connecting him to Bozize and the KNK amounted to illegality.  Without going any further into his submission for ground 1, there is merit in the above particulars alone.  Ground 1 is reasonably arguable.

Ground 2

23.In ground 2, Mr Shek submits there has been an error in law because on at least two occasions the adjudicator suggests in his decision that the applicant has failed to corroborate his evidence.  At paragraph 9 he states that “it is not sufficient if the evidence consists of bare assertions” and at paragraph 35 he says “if the applicant had produced at least one photograph…It would be a different matter”.

24.Mr Shek is right to say that it is well-established that to require corroboration in asylum cases is an error in law.  Mr Shek quotes from several authorities, for example, SS (Iran) v Secretary of State for Home Department [2008] EWCA Civ 233 where the court reiterated that corroboration is not required but did not find in that case the judge required corroboration but found his decision irrational for not explaining why the applicant’s account was not accepted.  The court considered with rigourous examination and anxious scrutiny that case even though it had considerable misgivings as to whether the case was fit for appeal.

25.It was also submitted that the TCAB erred in law in requiring the applicant to provide corroborating evidence in support of his claim when it has been clearly established that there exists a consistent pattern of gross and systematic violations of Human Rights in CAR.  Counsel quoted and referred to Batayav v Secretary of State for the Home Department (No.1) [2003] EWCA Civ 1489, paragraphs 4, 8 and 23 as well as Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807 paragraph 8 and HJ (Iran) v Secretary of State for the home Department (2011) 1 AC 596.

26.In addition, the TCAB ought to have taken into account that an asylum seeker fleeing has very little opportunity or possibility of possessing documentary evidence and corroborating evidence to support his claim.  It would appear that the wording in his decision suggests the adjudicator requires corroborating evidence and finds it lacking; which makes this ground reasonably arguable.

Ground 3

27.Mr Shek submits the TCAB has failed to properly consider the COI.  The adjudicator in both the appeal decisions here has said that the COI produced by the applicant does not refer to the applicant specifically or personally; they refer to the general situation of the country.  The adjudicator says this information does not per se advance a non-refoulement claim which is personal in nature.  The adjudicator refers to Re RS CACV 206/2012 which does say it has to be shown that an applicant will be personally at risk but Mr Shek submits that does not mean he is required to show that he is specifically named in the reports concerning country conditions.

28.Such personal connections, Mr Shek submits can also be proved by way of the treatment of persons similarly situated as the applicant in that particular country, whether in the context of non-refoulement claims or refugee claims under the Refugee Convention.  Mr Shek quotes from Salibian v Canada (Minister of Employment and Immigration) 1990 CanLII 7978 (FCA) [1990] 3 FC 250 (CA) which held that a lower tribunal committed an error of law in requiring that a claimant be personally a target of reprehensible acts and failed to consider the situation of similarly situated persons.  That court said in light of earlier decisions by that court on claims to Convention refugee status that:

a. An applicant did not have to show that he had himself been persecuted in the past or would himself be persecuted in the future

b. He could show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him, but from reprehensible acts committed or likely to be committed against members of a group to which he belonged

c. A situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or if necessary by all citizens on account of a risk of persecution based on one of the reasons stated in the definition

d. The fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin

29.In the present case the evidence from the applicant was that he would be associated with anti-Seleka militia because he was an active member of KNK.  He is relying on the general country conditions as well as his personal connection to the risks.  It was submitted the decisions were procedurally improper for failing to consider the COI, irrational for insufficient reason given for concluding he would not face a risk and illegal for failing to take into account relevant considerations and materials.

30.In addition, there was a failure to take into account and mention the applicant’s COI which directly contradicted the COI summarised by the TCAB.  This would suggest cherry picking documents to support its decision on the part of the TCAB, an approach criticised by McWalters J (as he then was) in AM Director of Immigration & Anor (2014) 19 HKPLR 89 paras 95 -106.  

31.In the grounds of appeal, certain documents had been referred to and relied on but not mentioned or even rejected in the TCAB decision.  Mohamed and his current situation had been referred to but not mentioned and dealt with in the TCAB decision.  It is submitted the TCAB could not have considered all arguments or documents objectively before arriving at the conclusion that the applicant was not facing a risk if refouled.

32.The adjudicator criticises the duty lawyer for providing an excessive amount of COI on behalf of the applicant.  At paragraph 7 of his decision he says she produced over 80 articles and publications which was “simply excessive and not helpful other than for the purpose of boosting the number and thickness of the documents, while the duty lawyer has not provided a list pinpointing which pages out of which publications she wished to alert me to.  The appeal board is left with the impression of the duty lawyer saying ‘Here are the articles, sort them out yourself, I have made my documents numerous and impressive’.”

33.However, I have had sight of the duty lawyer’s appeal submissions in the applicant’s 4^th affirmation marked as exhibit K-94 and she not only cites full quotes from articles and publications she finds material and wants to bring to the adjudicator’s attention but she cites the title, pages and paragraphs in bold for easy reference.  It does not appear to be that many exhibits produced by the applicant.  The criticism is entirely unfounded and unfair.

34.The submission that the TCAB wrongly looked for specific and personal reference to the applicant in the COI for it to have value or weight has merit.  The submission that it would appear no objective consideration has been given to the documents produced by the applicant; even though they have been referred to in the grounds of appeal has merit.  If the adjudicator has considered them and rejected them, then reasons should be given.  This ground is reasonably arguable.

Ground 4

35.The fourth ground concerns the adjudicator failing in his duty to raise a material issue with the applicant which directly concerns him.  The adjudicator made a finding that internal relocation was a viable option for the applicant but did not raise the issue with him and this amounts to procedural unfairness.  He failed to provide the applicant a proper opportunity to comment or explain.

36.Mr Shek also finds the adjudicator analysis lacking in that he did not take into account the applicant’s most relevant features when considering internal relocation for example his religion, political ties as well as the location and political position of his enemy Mohamed.  It was these issues that should have been discussed with the applicant before any possibility of internal relocation was considered viable.  Mr Shek found this to be a dereliction of the adjudicator’s duty of joint endeavour in these cases.  I find merit in this ground.

Extension of time, Order 53 Rule 4 (1)

37.There is an issue of a delay of two weeks in respect of the 1^st appeal decision; the Form 86 was filed on 15 March 2017. The legal principles for extension of time have been set out in AW v Director of Immigration & anor CACV 63/2015 3 November 2015, at paragraph 27,

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application… As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled”.

Significant factors that require consideration include the length of delay, the explanation offered for the delay, the merits of the substantive application and the question of prejudice to the applicant as well as public administration.

38.In this case, the applicant explains that he was applying for an Anonymity Order from the High Court and also at the same time applying for legal aid with the help of a solicitor acting on a pro bono basis.  He was not sitting back but proactively pursuing this application.  The delay was minimal and of little prejudice.  As I have decided his application is reasonably arguable, I therefore grant an extension of time for the application for leave to apply for judicial review.

Conclusion

39.Therefore, having heard this ex parte application and submissions, I find the four grounds are reasonably arguable and I grant leave to the applicant to judicial review the decisions of the TCAB dated 1 December 2016 and 26 July 2017.

Mr Randy S M Shek, instructed by Daly, Ho & Associates, assigned by DLA, for the Applicant