Akpegnon Kuevi v. Torture Claims Appeal Board

HCAL 611/2017

[2018] HKCFI 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 611 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following :

Order by the Honourable Madam Justice Poon:

Leave to apply for Judicial Review refused.

Observations for the applicant:

Background

1The applicant is of Togolese origin.  He came to Hong Kong on 19 April 2013.  He lodged a non‑refoulement claim in June 2013.  His claim was rejected by the Director of Immigration with two Notices of Decision on 16 November 2015 and 1 June 2017 (consideration of BOR 2 risk).

2His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 4 August 2017, after an oral hearing was held on 29 June 2017 by the Board.  The applicant applied for leave for judicial review on 12 September 2017.

Allegations made by the applicant

3The applicant claimed that he was a member of MEET, an association/movement for the development of students.  He relied on 3 incidents, and asked to be assessed on all grounds.

(1) On 25 October 2011, he took part in a demonstration at the university campus as a result of which he and other members of MEET sustained injuries caused by the police.  He admitted to have thrown stones and fought back at the police.  He was taken away, detained, before he was released the next day.  After staying at his mother’s home briefly he resumed his studies in the university.

(2) MEET organised another assembly in June 2012. The police arrived and dispersed them.  He was amongst those arrested and he was made to sit in the police vehicle parked in the university campus for about 8 hours before he was allowed to leave.  In order to avoid being further arrested, he joined a pro‑government student organisation NJSPF and was granted membership after the second incident.

(3) Around October 2012, he attended a general assembly of NJSPF.  He found out that members who held important position in MEET were also members of NJSPF.  He immediately left and told MEET committee members about it.  There was a commotion and he left on the arrival of the police.  Knowing that he was wanted by the police, he fled to Ghana, stayed there for 5 months, left for China and then came to Hong Kong.

Grounds of the application

4The applicant had not requested for hearing of his leave application pursuant to O.53 r.3(3).  His application was considered on the papers.

5The applicant advanced two grounds:

(1) Lack of legal representation for his appeal to the Board;

(2) There was insufficient time for him to submit all the documents for the Board’s consideration.

Consideration of the application

6Claimants are usually only provided with legal representation from the Duty Lawyer Service up to the stage of the hearing before the Director and not beyond.  It is clear from his Notice of Appeal with grounds attached dated 30 November 2015 that he must have had the necessary assistance.  He was notified by a letter dated 8 May 2017 of the hearing date scheduled on 29 June 2017.  He had ample time and opportunity, had he wanted to, to obtain and gather the materials that would advance his case before the Board.  Despite a direction by the Adjudicator to produce the original of his membership card of NJSPF, he defied that direction on the day of the hearing and simply told the Board that he had forgotten to bring it. During that hearing he indicated that he was able to produce that and the transcripts of his study in the university and new COI in support of his claim as early as the afternoon on that same day.  Nonetheless, he only produced the part of those documents on 12 July 2017. The case officer failed to contact him thereafter and he ultimately submitted the membership card on 27 July 2017.

Conclusion

7It is clear from the Decision of the Adjudicator that ample opportunities had been given to the applicant to produce documents.  Further, the applicant’s case was analysed thoroughly and the Adjudicator was entitled to come to the conclusion he did.  There was neither any apparent breach of procedural requirements, nor procedures which failed to meet the high standards of fairness or in any way rendered its decision Wednesbury[1] unreasonable.

8In my judgment, the applicant failed to show that his grounds of judicial review are reasonably arguable with a realistic prospect of success[2].

9The application for leave to apply for judicial review is therefore refused.

Dated this the 27^th day of March 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1] Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223

[2] See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676