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

HCAL 1711/2019

[2021] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1711 of 2019

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 counsel for the Applicant in open court;

Order by Deputy High Court Judge P. Li:

1.  Leave to apply for Judicial Review be refused; and

2.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

Introduction

1.The applicant was born on 1 January 1974 in Lomé, Togo.  He sneaked into Hong Kong on 14 March 2006. He was arrested on 1 January 2009 for illegal remaining in Hong Kong. 

2.He lodged a torture claim (‘CAT’) on 2 February 2009. His claim was treated as a non-refoulement claim under the Unified Screening Mechanism (‘USM’) [1].

3.He was in fear that he would be harmed or killed by his paternal uncle if he returned to Togo. The fear arose from a land dispute.

4.His refugee application in 2006 was rejected by the UNHCR in Hong Kong.

5.His non-refoulement claim was rejected by the Director of Immigration (‘the Director’) on 14 August 2017.  His appeal to the Torture Claims Appeal Board (“TCAB”) was dismissed by the adjudicator on 6 May 2019.

Background [2]

6.The applicant was divorced. He was a furniture worker. His parents were deceased. His sister was in Canada. His paternal uncle was a soldier.

7.The applicant and his family lived on the land belonging to his father [3]. In 2002 when his father passed away intestate, he and his sister inherited the land. He and his sister had registered as the owners. His paternal uncle was angry about this and claimed that the land belonged to the family. They had no right to sell the land.

8.About November 2005, he and his sister sold the land without notifying his paternal uncle. They shared the proceeds.

9.His paternal uncle was furious about the sale and threatened to kill them. He and his sister left the family house to stay with their friends.[4] Later they decided to leave Togo.

10.In 2008, he phoned his friend from Hong Kong. This friend told him that his paternal uncle still threatened to kill him. His sister had already gone to Canada.

11.He did not seek help from the police in Togo as he could not afford a bribe. He believed that the police could not prevent his paternal uncle harming him as his paternal uncle was a soldier.

12.He did not think relocation viable as his paternal uncle could locate him anywhere in Togo.

The decision of the Director

13.The Director rejected the applicant’s claim for the following reasons:

a.  The Director did not accept that his paternal uncle had real intention to harm or kill him given the following: [5]

i.  Since he and his sister inherited the land in 2002 until the sale in 2005, they lived with the paternal uncle. Nothing happened in this period.

ii.  After the sale, the applicant left the family house and stayed with a friend nearby. He was safe.

iii.  He could leave Togo without any problem. He was not targeted by the government.

b.  Having considered relevant COI, the Director found that the Togo government had taken practical steps to enhance the policy to protect the rights of citizens. There was no evidence that the Togo government was unable or unwilling to discharge their duties or tolerated any unlawful conduct.

c.  The applicant chose not to seek assistance from the police or the authorities. It was not the case that they refused to assist.[6]

d.  It was viable to relocate to Sokedé or Kpalimé.

e.  The Director did not accept that there was personal and real risk of ill-treatment or arbitrary deprivation of life. The threats even if true arose from a land dispute only. There was no torture. There was no evidence that the Togo government was involved, had encouraged or was indifferent to the conduct of the paternal uncle.[7]

14.The Adjudicator dismissed the applicant’s appeal on the following grounds:

a.  During the hearing before the TCAB, the applicant conceded that he had no title to the family land. He cheated his paternal uncle in selling the family land. It was fraudulent.

b.  He did not turn to the Togo authorities for assistance in the dispute.

c.  There was no political, ethnic, religious or other dimension related to the Refugee Convention. There was no well-founded fear of persecution.

d.  There was no real risk to the appellant’s right to life. There was no prospect that he would face CIDTP. There was no torture as defined under s. 37U of the Immigration Ordinance.

Judicial Review

15.The applicant applied for leave for judicial review of the TCAB decision on 21 June 2019. In the amended Form 86 [8], the applicant raised three grounds as follows:

a.  The adjudicator failed to give reasons as to the applicant’s claim under BOR 2.

b.  The adjudicator failed to properly deal with

i.  the real risk regarding the right to life,

ii.  extended State acquiescence, and

iii.  internal relocation.

c.  The adjudicator erred in finding that the applicant had committed a fraud against his uncle.

Failure to give reasons for BOR 2 claim

16.Mr. Ernest Ng, counsel for the applicant, complains that the adjudicator failed to deal with the principal issues, namely, (1) the applicant faced death threat from his uncle who was a soldier; (2) the applicant did not seek assistance from the police as he could not afford a bribe; (3) there was serious corruption in Togo according to some COI, and (4) the applicant could not escape from his uncle.

17.Mr. Ng points out that the only reason was paragraph 26 of the decision of the TCAB in which the adjudicator concluded:

“For the reasons adduced above the Board finds there is no real risk to the right to life and no prospect that he would face torture or cruelty, inhuman or degrading treatment or punishment.”

18.Mr. Ng criticises the adjudicator for giving inadequate reasons. The adjudicator failed to indicate how he resolved issues of law and fact.

19.I agree with counsel that the adjudicator has a duty to give reasons. The reasons must be adequate and clear for parties to understand the reasoning process. The reasons need not be elaborate but must be sufficient to enable the aggrieved party to consider the possibilities of administrative review and judicial review.[9] However, whether reasons are adequate must depend on the context and the nature of the issues in dispute.

20.To ascertain whether there are adequate reasons, this court must examine the structure of the decision of the TCAB. It is unfair just to concentrate on the concluding paragraph.

21.In the beginning of his decision, the adjudicator pointed out that the basis of the applicant’s claim was set out in the decision of the Director. He then went on to summarize the evidence of the applicant during the oral hearing.[10]

22.In the summary, the adjudicator highlighted the following points:

a.  The applicant admitted that his father never owned the land which was family land.

b.  The applicant formed the erroneous belief of his father’s ownership of the land as he saw his father working on the land when he was a child.

c.  The applicant never had the right to sell it.

d.  The applicant conceded that his sister convinced a court to validate the sale.

e.  The applicant conceded that he cheated his uncle.

23.The summary does not fully reveal the stance of the adjudicator. In fact, he doubted the credibility of the applicant in strong terms. In counter 65 of the transcript of the oral hearing, the adjudicator said:

“I think you are insulting the intelligence of the Board, you are telling me that an unnamed man gave you four thousand dollars for the sale of land which you have no paper to prove that you own, you do not read the papers and you signed them. In what system is this a proper sale and in what customary system in Togo is this permissible? How do you expect the Board to believe that you think you own the land when it is owned by your family and how is the sale validated either by the community or the court? None of it makes sense and you are insulting the Board…”

24.In counter 77, the adjudicator again commented,

“Your story doesn’t make sense. The court cannot transfer the land to this man unless the court has proof that you own the land.”

25.Further in the oral hearing, there was the following exchange in counters 81-90:[11]

“A: Your uncle is right to be angry, no?

IT: Yes, that is why his uncle is so angry.

A: Okay, so uh your uncle is angry with you because you cheated him. Why don’t you give the money back and reverse the sale?

IT: He said that uh, so he cannot give the money back and because he also already spent that money.

A: You spent 2,000 dollars in three days?

IT: So, uh, he didn’t spend all the money in those 3 days but he said he needed that money, so, he didn’t want to give the money back.

A: So you cheated your uncle and you refused to give the money back?

IT: He said yes, that is why he, he, he flew, he left.”

26.The adjudicator then set out the legal principles in relation to the test of “real risk”, the role of the TCAB, the burden of proof and the high standards of fairness required in assessing the claims. [12]

27.The adjudicator summarized the finding of facts in paragraphs 14 and 16:

“14. The Appellant’s claim rests on a land dispute with his uncle, whom he cheated out of his family land. The Appellant acknowledges that the sale of the land, which he did not own and to which he had no title, was fraudulent. He says that he came to Hong Kong because his uncle was angry enough about being cheated to threaten to kill the Appellant. The Appellant did not turn to the police in Togo for protection against his uncle.

15….

16. On the basis of those findings, the Board now proceeds to assess whether the Appellant faces a real risk of any form of harm in Togo based on his accepted profile and the reliable country information relating to Togo, included above.”

28.In relation to BOR 2, the adjudicator set out the text of the article in full. He pointed out a relevant authority Osman v UK [13]in relation to the interpretation of a similar article in ECHR. In particular, he pointed out paragraphs 115-116 of the judgment in relation to State acquiescence. This showed that the adjudicator was fully alive to the issue of extended State acquiescence.

29.It was in this background that the adjudicator concluded in paragraph 26 that there is no real risk to the applicant’s right to life.

30.In compiling the decision, the adjudicator must have in mind the Director’s decision and the evidence of the oral hearing. It would not escape him that what the applicant told the Director was inconsistent with his evidence in the oral hearing.

31.In my view, it is all too obvious that the adjudicator disbelieved the story of the applicant. He thus concluded that there was no real risk. It follows that the principle issues raised by Mr. Ng above must have been rejected.

32.It is true that the adjudicator had not set out the detailed steps of his thought process. He did not rule that the applicant was not credible. However, a fair reading of his decision and the relevant transcript would leave this court in no doubt that the reasons are adequate. The applicant would not be prejudiced in anyway.

33.I reject this ground.

Failure to investigate

34.Mr. Ng complains that the adjudicator failed to investigate. The adjudicator failed to obtain information in relation to two main questions:

a.  That there was a real risk that the applicant’s right to life would be infringed.

b.  The reason why the applicant did not turn to Togolese police for assistance.

35.Mr. Ng relies on the general approach set out in the following cases, TK v Jenkins[14] and Vo Van Hung v Torture Claims Appeal Board.[15]

36.I need only refer to TK v Jenkins, CJHC[16] commented on the duty to inquire,

“In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the Adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”[17]

37.In TK, the applicant alleged that the local police were indifferent and took no action against the criminal activities of the other party. CJHC pointed out that the applicant was all along represented. He and his legal representatives could have obtained for themselves information to support the claim.  If they had not seen fit to obtain and supply such information to the Adjudicator, the high standards of fairness would not require the Adjudicator to do so for the applicant.  In any event, there was no request for assistance.[18]

38.Mr. Ng has not indicated what further inquiries are expected from the adjudicator.

39.The two questions raised by Mr. Ng above turn on the credibility of the applicant. The adjudicator had considered the evidence and concluded that there was no real risk of the applicant’s right to life. He had obviously rejected the evidence that the applicant could not offer a bribe.

40.In order to establish an infringement of Art. 2, the applicant must first establish there is a real risk. Secondly, he must establish that the State authorities failed to obviate the risk by providing appropriate protection.

41.In the present case, the applicant could not establish a real risk of harm to his life, there is no need to consider State protection. The issue of extended state acquiescence does not arise as there was no evidence that the Togolese police had knowledge or ought to have aware of a real risk of harm to the applicant’s life.

42.I reject this ground.

Error of fact

43.Mr. Ng points out that the transcript of the oral hearing does not reveal that the applicant had conceded that he had committed a fraud on his paternal uncle. The allegation of fraud was never put to him. Mr. Ng argues that the adjudicator was wrong in concluding that the sale of the land was fraudulent.

44.I have set out the most telling parts of the transcript above. It is however essential to read the whole transcript in order to be in context. The adjudicator only used the word ‘cheat’ in several occasions. I am sure the applicant was fully aware of the view of the adjudicator. He had tried to explain but gave more unconvincing answers. He finally admitted that he cheated his paternal uncle.[19]

45.Mr. Ng queries the use of the terms ‘fraud’ and ‘fraudulent’ by the adjudicator in his decision. Mr. Ng is not clear whether the adjudicator meant civil or criminal liability. As I pointed out above, the adjudicator only used the term ‘cheat’ during the oral hearing, the applicant should not have any difficulty understanding the term in the context of the sale of the land. There is nothing in the transcript which indicated the contrary.

46.In my view, the terms ‘fraud’ and ‘fraudulent’ are used loosely in the decision. They convey the same meaning as ‘cheat’. It would not cause any misunderstanding or prejudice to the applicant.

47.There is no substance in this ground.

Unreasonable decision

48.Mr. Ng points out that the decision of the adjudicator was irrational given the facts disclosed in other grounds. In substance, it is a repeat of the other grounds. Mr. Ng does not specify any part of the decision which is irrational.

49.I have rejected the first three grounds already. I find nothing unreasonable in the decision of the adjudicator. This ground fails. 

Conclusion

50.Having considered the above, the applicant’s case is not reasonably arguable. There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 13^th day of January 2021.

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