Moussa Issaka Moustapha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2862/2018

[2020] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2862 of 2018

BETWEEN

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

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 August 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by replacing the Secretary of Justice with the Board as proposed respondent and by replacing the Board with the Director of Immigration (the “Director”) as interested party.

4.The applicant appealed to the Board against the Director’s decision of rejecting his non‑refoulement claim.  However, he subsequently wrote a letter dated 20 August 2018 (the “withdrawal letter”) to withdraw his appeal.  By the Board’s Decision, the Board gave direction that his appeal be withdrawn and that the Director’s decision be confirmed.  The discussion below is mainly on this issue of whether leave should be given to the applicant for leave to review the Board’s Decision judicially.

The applicant

5.The applicant is a Beninese national.  He came to Hong Kong on 1 June 2014 as a visitor and was allowed to stay until 15 June 2014.  He overstayed and surrendered to the Immigration Department on 3 September 2014.  By letter dated 3 September 2014, he lodged his non‑refoulement claim.

6.He claimed that if refouled, he would be harmed or killed by a gang known as the Adamu Cult because he refused to pay the extortion money they demanded.  Further, although he has Nigerian citizenship, he could not relocate to Nigeria because of civil unrest there.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 30 July 2018 (“the Director’s Decision”), the Director refused his claim on all risks for the reason that his claim was not substantiated.  The Director found that the level of risk of harm from the Adamu Cult upon his return was assessed to be low [13]; that state protection would be available to him [20] and internal relocation was an option open to him [22].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision.  Before attending a hearing before the Board, he wrote his withdrawal letter to the Board in the terms below:

“I Mr Moussa Issaka Moustapha withdraw my appeal/petition the reason for my withdrawal is I want to go back to my country home to see my sick father and to take care of his documents, and prepare my own document too.

I understand that by withdrawing my appeal petition the decision which I had appealed and petition against will remain in force. I understand this is a final disposal of my appeal and petition before the Torture Claims Appeal Board and Non‑Refoulement Claims Petition Office.

20/8/2018”

10.By the Board’s Decision, the Board considered that his appeal/petition has been disposed of by his withdrawal and finally determined by the Board and that no further action will be taken by the Board in respect of his appeal/petition.  I shall set out the relevant parts of the Board’s Decision:

“We refer to your letter dated 20 August 2018 to the Torture Claim Appeal Board/Non‑refoulement Claims Petition Office. In the letter, you apply to withdraw your appeal/petition against the immigration officer’s decision as contained in the Notice of Decision of 30 July 2018 attached to your Notice of Appeal/Petition of 8 August 2018.

The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to Benin. Under the circumstances, the Board has given direction that your appeal/petition be withdrawn. The Board has also directed that the immigration officer’s decision of 30 July 2018 be confirmed.

Please note that your appeal/petition has now been disposed of and finally determined by the Board.  No further action will be taken by the Board in respect of your appeal/petition.”

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he had simply supplied the letters above for the court’s consideration.

DISCUSSION

13.The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669 held

“Where a withdrawal or abandonment is invalid, it would be logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application. …this conclusion also appears to us to follow from applying the high standard of fairness required in handling non‑refoulement claims.” [43]

14.The discussion will be on the interpretation of the applicant’s letter of withdrawal.

15.Nowhere in the letter of withdrawal did he say that it was safe for him to return to his own country.  His purposes of withdrawing are quite clear: that he wanted to see his sick father and take care of his documents and also to prepare for his own document, by which, it would appear clear that he would be coming back to continue with his appeal.  Otherwise, what is the purpose of preparing his own document?

16.The Board construed his letter as he felt safe to return to his own country and therefore he would not be coming back to continue with his appeal. It is on this basis that the Board processed his application for withdrawal.

17.If the Board considers that the purpose of his withdrawing his appeal is inconsistent with what the Board considered to be the case, i.e. that he would not be coming back to continue with his appeal, the Board might find that his letter of withdrawal is invalid and refuse to accept his application and continued with the appeal.

18.There is a strong possibility that the Board had misunderstood the applicant’s withdrawal letter.  It would be unreasonable for the Board to make its decision of not taking further action in the applicant’s appeal.

CONCLUSION

19.I therefore grant leave for the applicant to apply forhis intended judicial review.

20.I advise that, in order to save costs and time, the Board should re‑consider the applicant’s letter of withdrawal and take the appropriate action to address the issue in dispute, bearing in mind that it is preferable to consider the merits of the applicant’s case for the disposal of his non‑refoulement claim, instead of on procedural technicality.

Dated the 10^th day of August 2020

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