Melemoko Ndiala Saint Juste Seguy Lionel v. Torture Claims Appeal Board

CACV 51/2020

[2021] HKCA 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 51 OF 2020

(ON APPEAL FROM HCAL NO 738 OF 2017)

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Before: Hon Lam VP and Au JA in Court

Date of Hearing: 27 April 2021

Date of Judgment: 27 April 2021

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.The applicant is a national of Central African Republic (“CAR”) and a non-refoulement claimant. This is his appeal against the judgment of Deputy High Court Judge Josiah Lam dated 21 August 2019 (“DHCJ Lam Judgment”) in refusing to grant the applicant leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 7 July 2017 (“the Board’s Decision”).

2.By way of the Board’s Decision, the Board dismissed the applicant’s appeal against the Director’s decisions to reject his non‑refoulement claim based on firstly Torture risk, BOR3 risk and persecution risk, and later on BOR2 risk.

3.The principal basis of the intended judicial review challenge is one of procedural unfairness, in that the applicant says the Board has failed to give sufficient/adequate reasons for the Board’s Decision.

4.The relevant background leading to the Board’s Decision and DHCJ Josiah Lam’s Judgment has been usefully summarized Deputy High Court Judge Bruno Chan in his decision dated 10 January 2020 at [9] - [22].  By way of that decision, DHCJ Chan extended time to the applicant to appeal against DHCJ Lam’s Judgment to this court.  We will adopt that summary and the abbreviations used therein in this decision.

5.The relevant principles concerning the content of the duty to give reasons are well-settled.  For the present purposes, they include these:

(1)  The adequacy of the reasons given would depend on the context in which the decision maker is operating and the particular circumstances of the case in question.

(2)  The reasons given should show to the objective reader that the decision maker has addressed the substantial issues (but not necessarily every single issue) before it and why it has come to its decision.

(3)  Depending on the circumstances of each case, the reasons may not require great elaboration and they may be brief.  It is only when they are defective in substance that they should be considered inadequate.  Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.

6.Bearing these in mind, we agree with Mr Albert Wong for the applicant that the judicial review is reasonably arguable for the following brief reasons:

(1)  As pointed out by Mr Wong, the Board in determining the applicant’s appeal identified “the crux of the issue” as the situation in CAR.  In dismissing the appeal, the Board gave the main reason at paragraph 34 of the Board’s Decision that based on “all the above-mentioned” COI, CAR was on the road to recovery and with the presidential election in 2016, CAR was “now” back to rule by civilians.

(2)  However, as a matter of fact, subsequent to the hearing of the appeal by the Board on 3 June 2016 and before the Board’s Decision, the applicant had at the invitation of the Director filed additional written submissions on 8 June 2017 in relation to his BOR2 risk claim.  The applicant referred to various updated COIs seeking to show that there was a serious deterioration in the situation in CAR since 2016.  These updated COIs relate to the period between 3 August 2016 and 1 June 2017.  The Director then gave his Further Decision on 14 June 2017.  In it, the Director referred to the additional submissions and noted that the applicant’s said submissions were “mainly concerned with the [COI] from news media regarding [CAR] situation since September 2016” which related to what the applicant said to be “violence by peacekeepers in CAR” and “continuing conflicts between Seleka and Anti-Balaka and other instance of violence”.  The Director also noted that it was the applicant’s case that CAR was thus still an unsafe place for him to return notwithstanding a new CAR president had been in position over one year. However, at the end, the Director still rejected the applicant’s BOR2 claim for the reasons given therein.

(3)  The Director’s Further Decision was provided to the Board as it was common ground that the Board would also consider the applicant’s BOR2 claim in the appeal.  In other words, the Board had been provided with the applicant’s additional submissions and the updated COIs before it gave the Board’s Decision.

(4)  However, it is apparent from the Board’s Decision (which was given on 7 July 2017) that, in rejecting the applicant’s appeal, the Board has made no reference to or mention at all about the matters advanced by the applicant in the additional submissions or any of the updated COIs.  Quite to the contrary, as mentioned above, the Board’s main reason in dismissing the appeal appears to have been only based on the COIs that were advanced at the hearing (ie, on 3 June 2016) and on the basis of what the CAR situation was by the end of June 2016.  This conclusion is on the face of it in contradiction with the updated COIs and the additional submissions.  For example, as mentioned at paragraph 20 of the additional submissions, in its latest report on 1 June 2017, the UN News Centre stated that “violence in [CAR] had entered a new spiral of escalating conflict and the situation was quickly deteriorating…”.

(5)  In the premises, we agree with Mr Wong that it is reasonably arguable that the Board’s Decision is tainted with procedural unfairness, in that the Board has failed to give adequate reasons.  It would not be apparent to an objective reader as to the reasons why the Board had rejected (if it was intended to do so) the applicant’s additional submissions and the updated COIs, or why, notwithstanding these materials, the Board had still formed the view that the situation in the CAR was still as it was in June 2016 as stated at paragraph 34 of the Board’s Decision.

7.For these reasons, we will allow the appeal and grant leave to apply for judicial review on the grounds as stated in the Form 86[1].  In this respect, it is pertinent to mention that when DHCJ Lam dealt with the leave application, the applicant was acting in person and did not provide the additional submissions to the learned Deputy Judge.  In the premises, it is understandable as to why he did not at that time find the applicant’s intended judicial review not reasonably arguable.

8.We further order that costs of this appeal be in the cause of the judicial review, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations.

Mr Albert N B Wong, instructed by Messrs Daly & Associates, assigned by the Director of Legal Aid, for the applicant