Azubuine Solomon Kingsley v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 231/2021

[2021] HKCA 1940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2021

(ON APPEAL FROM HCAL NO 2865 OF 2018)

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Before: Hon Au and Chow JJA in Court

Dates of Written Submissions: 29 September 2021, 13 and 22 October 2021

Date of Decision: 21 December 2021

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DECISION

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Hon Chow JA (giving the decision of the Court):

INTRODUCTION

1.This is an application by the Applicant for leave to adduce new evidence in support of his appeal against the order of Deputy High Court Judge P Li dated 27 April 2021 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 September 2018 (“the Board’s Decision”).  The proposed new evidence relates to:

(1)  4 medical reports dated between 20 October 2020 and 15 July 2021; and

(2)  2 items of country of origin information (“COI”), namely, (i) a news article appearing in Premium Times dated 9 June 2016, and (ii) a report by Freedom House dated 14 November 2017.

CLAIM FOR NON-REFOULEMENT PROTECTION

2.The Applicant is a Nigerian national.  He entered Hong Kong as a visitor on 4 September 2010 using a false passport, and was permitted to remain in Hong Kong until 25 September 2010.  He overstayed, and was later arrested by the Police on 25 January 2011 for remaining in Hong Kong illegally.  He gave multiple identities (using different names and dates of birth) to the Police / Immigration Department on different occasions (see §§164-168 of the Board’s Decision).

3.On 28 January 2011, he lodged a written signification with the Director of Immigration (“the Director”) claiming non-refoulement protection.

(1)  His torture claim was rejected by the Director on 20 August 2013, and his appeal therefrom was rejected by the Board on 9 January 2014.

(2)  His claim for non-refoulement protection under all applicable grounds other than torture risk was rejected by the Director on 9 May 2017, and his appeal therefrom was rejected by the Board on 21 September 2018.

4.Before the Director and the Board, the Applicant relied on multiple grounds in support of his claim for non-refoulement protection, including:

(1)  his fear of attack or harm by neighbouring villagers, in particular a man called Arusiokonga, over a land dispute;

(2)  his fear of persecution by the Nigerian Government on account of his Igbo ethnicity, a minority group in Nigeria;

(3)  his fear of harm by the Nigerian Government / Fulani herdsmen on account of his Christian religious faith; and

(4)  his fear of harm by the Nigerian Government on account of his membership of the Indigenous People of Biafra (“IPOB”), a political organization which espouses the causes of the Igbo people in Nigeria and calls for the establishment of a separate Biafran State in Nigeria (this claim was raised by the Applicant for the first time in the course of the appeal hearing before the Board).

5.In the Board’s Decision dated 21 September 2018, the Board rejected the evidence of the Applicant, finding serious problems with his account, including:

(1)  the manner in which the Applicant gave his testimony - the Board considered that the Applicant presented himself as a witness who was frequently hostile, combative and evasive, and whose evidence overall was vague and lacking in appropriate detail and context;

(2)  the Applicant’s failure to make his claims at the first reasonable opportunity;

(3)  inconsistencies in the Applicant’s account;

(4)  inconsistencies between the Applicant’s account and COI;

(5)  the Applicant’s behaviour relating to the disclosure of his identities; and

(6)  lack of supporting documentary evidence.

6.At §173 of the Board’s Decision, the Board found as follows:

“After assessing the evidence in the round, in view of the constellation of serious problems with the Appellant’s evidence already highlighted, the Board is not persuaded, even to the low standard required, that the material events and the conditions that he described in Nigeria, upon which his claim is based, are factually accurate. In the assessment of the Board, with the possible exception of his sur place activities in Hong Kong since 2016[1] (which the Board will assess separately), the Board finds his evidence to be lacking in credibility in its totality and not even the centre piece of his claims can be regarded as reliable.”

7.The Board rejected the various claimed risks of harm relied upon by the Applicant in support of his claim for non-refoulement protection (see §§183-190 of the Board’s Decision).

APPLICATION FOR JUDICIAL REVIEW

8.On 13 December 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  He raised the following main points in his affirmation in support of the application, as summarized by the Judge in the CALL-1 Form, at §31 ([2021] HKCFI 1116):

“a. His permanent physical disability could not be cured. The TCAB should give more tolerance due to his condition. He submitted a medical report dated 5/2/2018 from Dr. Samuel Leung, Specialist in Neurosurgery.

b. His father died on 22/4/2018 in Nigeria. He and his brother would inherit the land. He therefore was the next target to be killed. He submitted a death certificate of his father.

c. The adjudicator mistakenly found him as a courier of IPOB, whereas he was the courier of MASSOB. He was only informed of a rally in Hong Kong of IPOB in 2017. He thus joined the rally after 2017.

d. The Nigerian government monitored the movement of dissidents. He was in fear he would be killed by 2 Islamic groups because of his status as a Christian.

e. The interpreter in the TCAB could not fully translate his answers. He actually spoke calmly and gently.”

9.On 27 April 2021, the Judge dismissed the Applicant’s application for leave to apply for judicial review, for the following reasons:

“33. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

34. The TCAB has the duty to ascertain the facts. It is not for this court to embark on any fact finding exercise. The applicant has a duty to disclose full material facts in support of his claim. Any failure may affect his credibility.

35. Despite the above, I have the following comments as to the points raised in the affidavit in support of the leave application:

a. The medical report by Dr. Samual Leung was dated 5/2/2018. It should be available during the TCAB hearings in February and March 2018. Had it been submitted, it must have been referred to by the adjudicator. However, it was never mentioned in the TCAB decision. Nor was it mentioned by the applicant’s lawyer. In any event, the applicant did not give evidence as to how he was affected by this injury since 2004.

b. The applicant asserted that his father died on 22/4/2018 and produced a death certificate. This was meant to explain why he was targeted by the people from the adjacent village. The attack of his siblings and the applicant took place from 1983 to 2004. It was during the lifetime of his father. The adjudicator’s query is valid that his father should be the target instead of the applicant.

c. There was no record in the TCAB decision that the applicant mentioned that he was the courier of MASSOB.

d. The applicant had never mentioned Fulani Herdsman and their killing of Christian to the Director or the TCAB.

e. The adjudicator had observed the applicant during the hearing. His assessment of the applicant’s attitude should be most accurate. In any event, the adjudicator did not reject the applicant’s evidence merely on demeanour, the inconsistencies and implausibility of the evidence were the major factors.

37. The adjudicator had analyzed the evidence in detail. He correctly pointed out the inconsistencies of the applicant’s evidence in the NCF, SCF and the TCAB. The adjudicator found that the applicant was not credible. The adjudicator rejected the factual bases of the applicant’s claim.

38. In my view, the adjudicator’s conclusion is reasonable. The applicant failed to prove he was personally at risk of any ill-treatment or harm if refouled. There is no error of law and procedure in both decisions.”

THE PRESENT APPLICATION FOR ADMISSION OF NEW EVIDENCE

10.On 10 May 2021, the Applicant filed a home-made Notice of Appeal against the Order.  On 30 June 2021, the Applicant’s current solicitors filed a Supplementary Notice of Appeal on his behalf.

11.On 26 July 2021, the Applicant issued the present summons seeking leave to adduce new evidence in support of the appeal.

12.The first group of proposed new evidence consists of 4 medical reports which, it is submitted by Mr Baker, shows that the Applicant was suffering from cognitive impairment thereby materially affecting his evidence before the Board, in particular his ability to give consistent and accurate reports of events and provide all relevant information in support of his claim for non-refoulement protection[2].  Mr Baker argues that the proposed medical evidence is relevant to Grounds 1, 3.1 and 3.2 of the Supplementary Notice of Appeal[3]:

(1)  Ground 1 contends that the Applicant’s evidence before the Board was affected by his injuries and ill-mental health, and the Judge failed to have sufficient regard to the effect of injuries and ill-mental health on the Applicant’s demeanour, memory, consistency, presentation of detail and tendency to state relevant facts, before the Board.

(2)  Grounds 3.1 and 3.2 contend that the Board and in turn the Judge failed to consider whether the inconsistencies in the Applicant’s evidence before the Board, and the finding that his claim based on his “sur place activities in Hong Kong since 2016” had been “engineered”[4], were explained by the Applicant’s ill-mental health and consequent cognitive impairments.

13.The second group of proposed new evidence consists of 2 items of COI which, according to Mr Baker, shows that the Nigerian Government uses or may use “circle” cybersurveillance technology to target and track political activists and dissidents, including by tracking their location in and outside of Nigeria and by listening into their conversations[5]. Mr Baker argues that the COI is relevant to Ground 2 of the Supplementary Notice of Appeal, which contends that the Board and in turn the Judge failed to adequately consider the risk emanating from the Applicant’s association with and membership of the IPOB[6]. Mr Baker also argues, under this ground of appeal, that the Board failed to discharge its duty of joint endeavour and should have found the COI itself, and it is permissible to rely on “fresh” evidence or material to show that an insufficient inquiry of this sort has been conducted, since the applicable standard is anxious scrutiny[7].

DISCUSSION

14.The requirements in Ladd v Marshall [1954] 1 WLR 1489 are applicable to the present application (see Nupur MST v Director of Immigration [2018] HKCA 524, at §14(3)).  Generally speaking, three conditions have to be satisfied before fresh evidence is admissible on an appeal:

(1)  It must be shown that the evidence could not have been obtained with reasonable diligence for use in the court below.

(2)  The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

(3)  The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

(i)     The proposed new medical evidence

15.In relation to the first Ladd v Marshall condition, it is important to appreciate that the question is not whether the medical reports sought to be adduced as new evidence could have been obtained with reasonable diligence for use in the proceedings below.  Three of the medical reports, namely (i) the report by Occupational Therapist Lee Chun Wah Clement dated 23 June 2021, (ii) the report by Specialist in Neurosurgery Dr Samuel Leung dated 3 June 2021, and (iii) the report by Dr Li Yim Chu of Queen Elizabeth Hospital dated 15 July 2021, were not in existence at the time of the Judge’s decision, and thus they plainly could not have been produced with reasonable diligence.  However, the proper question is whether evidence of the Applicant’s mental condition at the time of his appeal hearing before the Board (in February and March 2018) could have been obtained with reasonable diligence for use in the judicial review proceedings below.

16.If, as argued by Mr Baker, evidence of the Applicant’s mental condition was relevant to explain his demeanour, inconsistency of evidence and inability to state relevant and accurate facts before the Board, there seems no good reason why such evidence could not have been obtained with reasonable diligence for use in the proceedings below.  Mr Baker argues the Applicant and his wife did not previously think that the Applicant’s cognitive impairment was relevant to his non-refoulement claim.  In this regard, it is of note that in the Affirmation of the Applicant’s wife dated 26 July 2021, she states that:

“[10] I noticed, after reading the Decision and CALL-1 Form, that both the Board and the Judge flagged inconsistencies in the information and evidence provided by my husband. The Board also found my husband to be a hostile and evasive person. After knowing and living together with my husband for nearly nine years, I understand his way of thinking, speaking and character very well. I know that he would not intentionally mislead the Board and the Judge or knowingly provide inconsistent information. I further believe that the negative findings by the Board and the Judge regarding inconsistencies, evidentiary problems and demeanour are misguided, in that they arise from my husband’s neurological problems rather than any lack of bona fides, still less deception …

[11] After reading the Decision and CALL-1 Form, my husband and I began to suspect that his medical condition(s) could be relevant to his non-refoulement claim and related legal proceedings.” [emphasis added]

17.The “Decision” referred to in §§10 and 11 of the wife’s affirmation is a reference to the Board’s Decision[8].  It should be noted that the Judge did not, in the CALL-1 Form, make any fresh assessment of the Applicant’s demeanour, the consistency of his evidence, or the plausibility of his case.  The Judge merely referred to the relevant findings made by the Board[9], and came to the view that the Board’s Decision was reasonable[10]. There is no reason why the Applicant and/or his wife would not have been alerted to the possible relevance of the Applicant’s mental condition to his non-refoulement claim from reading the Decision alone.

18.In our view, the first Ladd v Marshall condition in respect of the proposed new medical evidence is not satisfied.

19.We also do not consider the second Ladd v Marshall condition to be satisfied.  The contents of the medical reports are summarized in §9 of Mr Baker’s Submissions which we do not propose to repeat in this decision.  While they may show that the Applicant has, for some time, been suffering from cognitive impairment, they do not show the degree of the Applicant’s cognitive impairment (if any) at the time of the appeal hearing before the Board, or that the Applicant’s cognitive impairment (if any) was a significant, contributing factor for his demeanour, the inconsistency of his evidence, or the implausibility of his case.

(ii)     The proposed new COI evidence

20.In so far as the 2 items of COI are concerned, they are dated 9 June 2016 and 14 November 2017 respectively, and plainly could have been deployed in the judicial review proceedings (commenced by the Applicant in December 2018) below.  According to the Applicant’s solicitor, she was able to locate the COI “quickly and easily” as “Freedom House is a well-known source of credible human rights related country of origin information, and as the Premium Times article appeared near the top of my Google searches”[11]. The fact that the Applicant was acting in person in the proceedings below is not a ground to dis-apply the Ladd v Marshall conditions for admission of new evidence on appeal.  Anyhow, it is recorded in §§86 and 102 of the Board’s Decision that (i) at the commencement of the appeal hearing, the Applicant’s counsel produced, inter alia, “copies of COI … which the Appellant obtained through his own research”, and (ii) during the course of the appeal hearing, “the Applicant submitted further COI, which he obtained through his own research”.  The relevant exhibits included a large number of internet articles[12]. It is thus clear that the Applicant was able to carry out his own internet research to look for relevant COI in support of his non-refoulement claim.  We do not therefore accept that the first Ladd v Marshall condition in respect of the proposed COI evidence is satisfied.

21.We also do not accept that the second Ladd v Marshall condition is satisfied.  As earlier mentioned, Mr Baker argues that the new COI evidence shows that the Nigerian Government uses or may use “circle” cybersurveillance technology to target and track political activists and dissidents, and such evidence is relevant to the consideration of the risk to the Applicant emanating from his association with and membership of the IPOB.  The proposed evidence does not, however, address (i) the Board’s rejection of the Applicant’s claim that “he became an IPOB member in Nigeria before he left for Hong Kong and/or that he was engaged in and/or actively supported any pro-Biafran secessionist movement(s) while he lived there”[13], and (ii) the Board’s finding that the Applicant’s interest and involvement in the IPOB in Hong Kong, if any, “is not based on any genuine interest and involvement in the cause of IPOB but rather has been engineered by him with the deliberate intention of bolstering his non-refoulement claim”[14].

22.Mr Baker argues that the Applicant is entitled to rely on the COI sought to be adduced as fresh evidence to show that the Board failed to discharge its duty of “joint endeavour”.  The duty of joint endeavour must, however, be considered in context and realistically.  The Applicant was legally represented in the appeal before the Board, and produced a large number internet articles on COI in support of his non-refoulement claim.  He did not raise the issue of his membership of the IPOB as a ground in support of his claim until the hearing of the appeal.  In those circumstances, we do not see how the Board could be criticized for not locating or considering the two internet articles now sought to be relied upon by the Applicant. Furthermore, the alleged failure of the duty of joint endeavour on the part of the Board was not raised as a ground of judicial review.  It is well established that (i) an appeal against the refusal of leave by a judge at first instance is not the occasion for running arguments which could and should have been raised but were not raised before the judge, and (ii) the Court of Appeal’s focus is on the decision of the judge (see Nupur MST, at §14(2)).

23.In short, we are not satisfied that the proposed new COI evidence would probably have an important influence on the result of the appeal.

24.Lastly, there are no exceptional circumstances in the present case for the Court of Appeal to exercise its residual discretion to admit the proposed new medical and/or COI evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

DISPOSITION

25.The Applicant’s summons dated 26 July 2021 is dismissed with costs to the Director.  We have considered the Department of Justice’s statement of costs dated 13 October 2021 and the Applicant’s Reply Submissions dated 22 October 2021 dealing with the costs claimed by the Director.  We summarily assess the Director’s costs at HK$45,000.

Mr Josh Baker, instructed by Patricia Ho & Associates, for the Applicant

Ms Jenny Cheung, Senior Government Counsel (Ag.) of Department of Justice, for the Putative Interested Party