Case Document

100%Judiciary

HCAL 248/2018

[2020] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 248 of 2018

BETWEEN

	Comlan Ayikoe Akpenamawu	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Togo (Togolese Republic), West Africa,who arrived in Hong Kong on 27 September 2012 with permission to remain as a visitor up to 11 October 2012 when he did not depart but instead overstayed until 15 October 2012 when he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Togo he would be harmed or killed by the police for participating in a protest against the government. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lomé, Togo. After leaving school he worked as a shop salesman in the Lomé market, and became a supporter of the political party National Alliance for Change (“ANC”) regularly attended its meetings and rallies.

3.One day in June 2011 police came to the Lomé market to investigate illegal activities of smuggling money out of the country against the law, and although they did not make any arrest, they confiscated money from the shops and market traders including the one in which the Applicant was working, claiming it was part of their investigation.

4.In August 2012 when after one year had passed but the government or the police had still failed to account for the whereabouts of the confiscated money, ANC held a protest for the shop owners against the police and the government, during which the riot police arrived to fire tear gas to disperse the protesters, and when some of the ANC supporters were injured, the Applicant helped to take them to the hospital for treatments.

5.Afterwards the Applicant went back to the ANC headquarter to meet with his fellowsupporters before returning home in the evening. However, in the middle of the night police arrived to look for him but he managed to escape to take shelter in a neighbour’s place for the night.

6.On the following morning he fled to neighbouring Ghana, but in early September 2012 when he was informed by his family that the police were still looking for him, he suspected that they were trying to kill him so as to cover up their confiscation of the money from the shops in the Lomé market, he decided that it was no longer safe to remain even inGhana as the presidents of the two countries were friends with each, and therefore departedon 17 September 2012 for China, and from there he travelled to Hong Kong on 27 September2012 where he subsequently overstayed and raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 24 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 24 February 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed risk of harm upon his return to Togo due to the absence of past ill-treatment from the police or the authorities, that there is no reliable evidence that the Togolese police were indeed looking for the Applicant, that reliable and objective Country of Origin Information (“COI”) show that marches and protests are a common occurrence in Togo without much incidents other than the normal disruption and disperse by the police, and that there are laws and legal system in place in Togo to prohibit arbitrary arrests and detentions and to protect the rights of its citizens to due process and fair trials, and hence reasonable state protection would beavailable to the Applicant if resorted to that even if he is indeed being pursued by the policefor their investigation of his role in the protest which took place more than seven years ago that there is nothing to indicate that the Togolese authorities would not deal with his case properly in accordance with the law.

9.By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submitadditional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 3 March 2016, and for which he attended an oral hearing on 13 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 1 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board accepted that the Applicant was a member of ANC and had taken part in the 2012 protest, but found his account that the Togolese police were looking to kill him in order to cover up the secret of their confiscation of the shoppers’money in the Lomé market as incredible as it was in fact not a secret which had actually led to the protest in 2012, that there is no reliable evidence that he is indeed being pursued by the police over that protest, and concluded that given the lapse of time and his minor role in the protest or in ANC that it was not accepted that he still faces any real risk of harm if returned to Togo that his non-refoulement claim for protection failed on all applicable grounds.

12.On 15 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form,and in his supporting affidavit of the same date he complained of not being given legal representation in his appeal before the Board, and that the Board had made its decision in a hurry with no proper research but without providing any particulars or specifics or elaborations as to how it was so.

13.As for his complaint of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. As suchI do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

15.As for his other complaint that the Board made its decision in a hurry without any proper research, as noted above that it was just a vague assertion without particulars or specifics or elaboration how it was so, and upon close examination of the COI referred to and considered by the Board relevant to his claim, I am unable to find any basis or merits in this complaint of the Applicant.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 59 – 74 of its decision and with the benefit of hearing him in oral evidence and in answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant,I do not find any reasonably arguable basis to challenge the finding of the Board.

18.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 10^th day of June 2020.

(NG Hang-yin)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10^th June 2020 Comlan Ayikoe Akpenamawu Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10^th June 2020 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3219/16/3/24/T10 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)