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

HCAL487/2017

[2018] HKCFI 1052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 487 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a national of Togo and arrived in Hong Kong on 14 December 2013, overstayed his Visa and then surrendered to the Immigration Department on 7 January 2014.  He then lodged a non-refoulement protection claim which the Director of Immigration dismissed on 13 April 2016 and 17 March 2017.  The applicant had lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 28 April 2017.  The applicant filed a notice of application for leave to apply for judicial review on 4 August 2017 against that last decision.

An extension of time

2.This application is late and should have been filed within three months of that last decision according to order 53 rule 4; the applicant has applied for an extension of time to make this application.  He has provided a reason for the delay in his application.  The applicant had applied for legal aid and was waiting for the decision.  He assumed he should await the decision before making this application.  A caseworker at the Justice Centre Hong Kong informed him that he was wrong and had to make this application within three months of the TCAB decision; that caseworker assisted him to make this application.  It is six days late.  I take the view that the delay is minimal and the applicant was being proactive in this application.  I grant an extension of time as requested.

Background

3.The basis of his claim is that he will be targeted by the National Intelligence Agency (“ANR”) and the ruling party Union for the Republic (“UNIR”) in Togo if refouled because of the applicant’s involvement with the former Minister Pascal.  Pascal was arrested and charged with fraud in September 2012.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need to summarise it here.

4.The applicant was educated but had not quite completed his university degree. He was married with two children.  The RPT was the ruling political party for many years in Togo from 1969 to 2012.  After the founder died in 2005 it was headed by his son President Gnassingbe who dissolved that party and replaced it with a new ruling party UNIR in April 2012.  A former Minister called Pascal did not agree with the president’s way of running the country and wanted change.  The people had suffered abject poverty, social injustice, gross violations of human rights for many years.  The people were suppressed by a corrupt government and Pascal wanted sea change; the applicant shared his views and ideology.

5.The applicant met him in 2009 through a friend who worked for the Ministry of Foreign Affairs.  Pascal was then the Minister of Territorial Administration (“MTA”).  In 2010 the applicant was recruited by him as a civil engineer working in villages with young people and heads of villagers.  He helped Pascal secretly spread his ideology which was essentially against the present government.

6.Pascal was arrested on 1 September 2012 and charged with fraud complicity in relation to a US$48 million case and detained for seven months.  His lawyers claimed it was a political persecution as the president suspected Pascal would run for presidency of Togo in 2015.  There were considerable political problems because of delays in holding elections.  In September 2013 the applicant was told he was about to be arrested by the ANR.  Supporters of Pascal advised him to flee to Hong Kong.  On 4 December 2013 he left for Ghana after bribing a border officer and then flew to China.  He was told that he would be killed if he returned to Togo because of his support of Pascal.

7.The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under all applicable grounds;

(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”).

8.The adjudicator conducted an oral hearing, on two occasions and treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the evidence from the applicant as well as the burden of proof and standard of proof in such claims.  There are supporting documents from the applicant that the adjudicator set out in his decision.  He adjourned the appeal hearing to give the applicant additional time to provide Country of Origin (“COI”) information that was originally in French to the adjudicator in English.  The other reason was because the adjudicator had misunderstood the COI, he thought the most recent election was in 2016 that resulted in a change of government but in fact the most recent election was in 2014 and President Gnassingbe was re-elected.  This being relevant was in part a reason for the second hearing being conducted.

9.The adjudicator was prepared to accept the applicant knew and was a supporter of Pascal, in part because Pascal was the former Minister of the MTA.  The adjudicator accepted that the applicant left a well-paid job with the MTA which supported his claim he left his country due to some genuine fear when Pascal was arrested in September 2013.  He set out his findings in great detail and he located country information that related to the political situation as well as the political activity of Pascal himself.  The adjudicator discussed with the applicant that the reports he found indicated to him that Pascal was, after his two arrests, not politically active any more.  The adjudicator found from the COI that Pascal had a passport and was free to travel overseas.  The information also indicated that the ANR or the Togolese authorities are not currently targeting Pascal or his supporters and harming them.

10.The adjudicator was not prepared to accept that the applicant’s friend told him that the ANR were about to arrest him because of their childhood friendship.  The adjudicator highlighted the inconsistencies in the applicant’s evidence regarding their childhood friendship.  The evidence that he was on a blacklist and how he found out about this fact was unconvincing.   The adjudicator concluded that the applicant fabricated these parts of his evidence to strengthen his claim for non-refoulement.  He concluded that the applicant was a supporter of Pascal but had exaggerated his level of support and exaggerated his level of involvement.

11.The adjudicator very fairly accepts that Pascal obviously remains a person of interest to the Togolese authorities and there was evidence that he suffered financial disadvantage when his television stations were closed down but he did not find those events represented a personal risk of harm to the applicant.  He concluded that there was only a remote or speculative risk which was not a real risk the applicant would be harmed by those enemies he identified because of his support for Pascal.  Therefore, the applicant had not made out a case for non-refoulement protection under any of the applicable grounds.  He was unsuccessful in showing he is at risk of torture, he is unable to invoke the protection of BOR 2 or BOR 3 and cannot prove a persecution risk the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

12.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims and evidence with utmost care, meticulously and extreme fairness.

13.The applicant has submitted in his statement that the adjudicator in effect did not act with a high standard of fairness, acted irrationally by placing too much weight on irrelevant matters and he did not understand the applicant’s evidence properly or fully which led to a wrong decision.  His misunderstandings led to him not believing the applicant.  The applicant reiterated these points in a letter he wrote to the court dated 9 January 2018 which enclosed previous letters submitted.

14.The applicant has made much of the fact the adjudicator made a mistake and thought that there was a recent change of government in Togo which was why he was not at risk if refouled.  The adjudicator has addressed this mistake in his decision and made it clear that he is no longer mistaken, see paragraph 31.  There is no merit in this ground or submission.

15.There is no merit also in the suggestion that the adjudicator was not happy with his information because they were in French. The adjudicator gave the applicant time to provide English translations of the French reports he wanted to submit; he adjourned the hearing.  Ultimately the applicant did not provide English translations but describe the contents of the reports and the adjudicator located information for himself about the subject matter after the hearing in recognition of his duty of fairness.  There is no substance to this complaint or ground.

16.I found the allegations that the adjudicator placed too much weight on irrelevant matters and did not understand the applicant’s claim properly to be groundless.  In fact, this adjudicator cannot be faulted for being conscientious and meticulous in assessing the applicant’s claim and ensuring he understood it and the COI.  His findings are detailed and there can be no criticism of him not giving full reasons for his conclusions.

17.In the oral hearing the applicant did repeat what was in his statement and added that the adjudicator either did not follow his evidence or did not understand his evidence.  He also added that he was not given sufficient time to provide more information to support a BOR 2 risk claim.  Not only did he have insufficient time, he did not know how to access the information to submit it.  This was not brought up during the appeal hearing with the adjudicator, there is no record of this in the decision.

18.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.

Dated 24^th day of May 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