Anyinefa Yaovi Jean v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 3169/2019

[2022] HKCFI 458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3169 OF 2019

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J U D G M E N T

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1.This is the leave application for judicial review against the decision of the Torture Claims Appeal Board (“TCAB”) dated 11 July 2019. The Director of Immigration (“Director”) had rejected the applicant’s non-refoulement claim on 15 March 2016[1] and 14 July 2017[2].

2.The applicant came to Hong Kong on 9 March 2011. He filed an application for refugee status with the UNHCR on 14 March 2011. He surrendered to the Immigration Department for overstaying on 25 March 2011. He filed the claim in this case on 23 September 2011.

3.The applicant was ethnic Ewe and HIV[3] positive. He was in fear that if refouled:

a.  He would be unable to receive proper treatment as government hospitals discriminated against ethnic Ewe patients in favour of ethnic Kabye patients. He would not receive proper treatment if imprisoned;

b.  He would also be rejected by his family because of the condition;

c.  His uncle threatened to kill him for having stolen money from his uncle’s hotel;

d.  He would be targeted by the government for his political activities.

BACKGROUND

4.The applicant was born in 1983, in Lomé, Togo. He had education for 13 years. He worked in his uncle’s hotel in Lomé. He was a Christian. He was brought up by his grandfather as his parents separated when he was young.

Political affiliation

5.Since 2005, he supported the UFC[4]. In 2007, he joined UFC as a member. He mobilised youths in his district in rallies to protest against unemployment and demanded more opportunities for Ewes.[5]

6.In 2005, he was arrested by the police for taking part in the protests. He was injured but managed to escape. He could not recall his treatment nor the recovery time.

HIV condition

7.In 2007, he had 3 surgical operations for hernia. He had blood transfusions. In 2008, he was confirmed HIV positive. He believed that he was infected during blood transfusions. His doctor advised that the condition was not life threatening if properly treated. He had no fixed salary working in his uncle’s hotel. He resorted to take money from the hotel to pay for his treatment. He had taken about 5 million CFA Francs[6] from the hotel.[7]

8.He could not afford the expenses in the private clinic and sought treatment from the central hospital in Lomé.[8] However, the pharmacy discriminated against Ewe patients. He was unable to get the drugs for treatment. Later, he was introduced to an NGO—JMAH[9]—where he could buy drugs for treatment until he left Togo. He needed to pay 5,000 CFA Francs for the drugs and 15,000 CFA Francs for the tests each month.

9.All along, he kept his condition secret from his family. One day shortly after the election in March 2010, his uncle discovered that he had taken money from the hotel. His uncle disclosed his condition to his grandfather. He was rejected by his family. He felt the discrimination around him. He decided to leave Togo.

Theft from his uncle’s hotel

10.In early 2011, his uncle threatened to kill him on the phone if he found problems in the accounts of the hotel. Eventually his uncle discovered that he had taken money from the hotel. His uncle gave him 3 months to repay the money which would expire in March 2011. However, he had already left Togo in February before the deadline. His uncle reported to the police.

11.He knew his uncle was a member of RPT[10] and an informer.[11] His uncle tipped off the security forces to arrest people holding discussion in the hotel. He never discussed politics with his uncle who warned him not to take part in demonstrations.

12.After he came to Hong Kong, a friend told him on the phone that his uncle and some military men came to look for him. He thought his uncle might have fabricated allegations against him.

Ethnic Discrimination and politics

13.The ruling party in Togo was RPT. It was controlled by Kabye ethnic group. They discriminated against the Ewes in all walks of life.

14.In 2010 (he could not recall the month), he was again seriously injured when the military dispersed a rally. There was serious violence. The rally was a prayer vigil session to pray for some changes in Togo. He was targeted by the military as he could mobilise youths. His head was injured but he escaped. He treated the injuries by himself. He dared not go to the hospital to avoid the military. He stayed in a hotel for several months.

15.Sometime in 2010, he changed allegiance to the ANC[12]. He stopped all contacts with the UFC. He alleged that the UFC had signed an agreement with the government which he disagreed. There were many UFC members joining ANC like him. He mobilised youths to join protests organised by the ANC. They were regarded as anti-government. He was targeted by the agents from the government.

16.During a demonstration organised by the ANC in 2010 (he could not recall the month), he was beaten by some plainclothes military agents. His head was wounded. He treated the injuries by himself. He dared not go to the hospital. He asserted that people like him who could mobilise youths would be targeted, attacked and expelled from Togo.

Relationship with journalists and the wanted list

17.He asserted that Romin, who was a “big brother” in his district, introduced journalists to him. He worked with journalists and took pictures for them.[13] Through the connection with Romin, some of those journalists had sent documents to the “Refugee Centre” to support his application for refugee status in Hong Kong.

18.“Tony” [14] was a journalist he met during the protests in 2010. They shared similar political ideas. Tony often came to his uncle’s hotel.

19.In September 2010[15], he met Tony in a restaurant. Tony showed him a list of 5 persons wanted by the military. His name was on the list. He did not know how Tony got the list. Tony told him that others who mobilised youths were on the wanted list and arrested. Since then, he stopped joining the protests on the advice of Tony. Although he had not seen the wanted list, he believed it was true as police/military officers had come to his house on several occasions to look for him. However, no one came to his uncle’s hotel to look for him. He had not met Tony again after September 2010. He learned that Tony was subsequently arrested and tortured by the military.

20.After he came to Hong Kong, Tony had sent documents to the “Refugee Centre” to support his application. However, Tony had since changed his stance and worked for the Togolese government. Tony gave information to the military for the arrest of some youths who participated in the protests.

Application for the passport and leaving Togo

21.It took him 7 months to obtain his passport. It was issued in October 2010. The husband of his aunt[16] told him that the Passport Office took time to investigate his application.

22.He used the passport to travel to Ghana, Burkina Faso, Dubai and Mali from October to December 2010. He believed that the travel record could facilitate his visa application to China and Hong Kong. He did not apply for protection in those countries because of similar discrimination against HIV patients there.

23.He paid his friend[17]500,000 CFA Francs to arrange immigration clearance at the airport in Lomé. He arrived at Guangzhou on 25 February 2011. He came to Hong Kong on 9 March 2011. He filed an application for refugee status with the UNHCR on 14 March 2011. He was given medication for treating his condition by the Department of Health in Hong Kong.[18]

24.Before leaving Togo, he had bought a stock of HIV drugs for 3 months’ treatment from JMAH.

His evidence in the SAT[19]and the convocations

25.In April 2014, a friend informed him on the phone that there were military men asking about him at his house. They left the convocations to the woman who sold food in front of his house.

26.Eventually, his friend took the convocations to Ghana and asked another person in the airport to bring the convocations to him in Hong Kong. That person travelled from Ghana to Hong Kong.

27.He believed that the authorities looked for him in relation to his work with the journalists or the crackdown before the Independence Day and the presidential election.

The TCAB decision

28.The Director rejected his claim on 15 March 2016 and 14 July 2017. The TCAB dismissed the appeal on 11 July 2019.

29.In the TCAB decision, the adjudicator had considered the evidence of the applicant in the First Instance Testimony dated 5 July 2011 (‘FIT’), the Torture Claim Form dated 17 January 2014 (‘TCF’), and the Supplemental Appeal Testimony dated 28 April 2014 (‘SAT’). This evidence formed the factual basis of his claim. The FIT and SAT were filed with the UNHCR for the application of refugee status.

30.The adjudicator concluded that the applicant was not credible. The main findings are summarised as follows:

i)  Whether the applicant was wanted

a.   In the FIT, the applicant stated that Tony did not tell him the other names on the list. He had not seen the list. However, at the TCAB hearing on 2 August 2017, he mentioned several names. In fact, during the interview before an Immigration Officer on 10 August 2015, he mentioned several names which were on the list. These people had mobilised youths and were arrested. The adjudicator found the applicant not credible as he must have a better memory at the time of making the FIT in 2011.[20]

b.   The convocations were issued in and after March 2011[21]. He was summoned for a judicial and administrative investigation. There was no indication on the convocations that he was wanted by the government for anti-government activities. [22]

c.   The applicant could travel freely with his passport to several countries in October to December 2010. He was not intercepted by the authorities. This strongly demonstrated that he was not wanted by the government.[23]

ii)  Whether the applicant was involved in political activities

a.   In answer 49 of the TCF about association with any organisation, the applicant only mentioned the affiliation of his grandfather and uncle. He did not mention his own affiliation with the UFC and ANC.

b.   In answer 33 of the TCF about the reason for leaving Togo, he did not mention his political activities as part of the reasons for leaving Togo. He did not attach the FIT to the TCF. The FIT recorded his political activities with the UFC and ANC. His political activities were an important basis of his claim. He could not have left this out. In fact, he was assisted by his lawyer and had declared that the information in the TCF was complete.

c.   Although he subsequently included the FIT in the Supplementary Claim Form[24], there was no explanation for this change of mind. The adjudicator did not accept that his political affiliation and activities had made him a target of the government.[25]

iii)  Whether there was death threat from his uncle

a.   In the FIT, the applicant mentioned that his uncle was suspicious and intended to check the account of the hotel in early 2011 when he returned to Lomé. His uncle threatened him on the phone that he would kill him if there were any problems. Before his uncle checked the accounts, he left Togo. After he arrived in Hong Kong, his friend told him on the phone that his uncle threatened to kill him. He thought by then his uncle must have discovered that he had taken money from the hotel.[26]

b.   However, in answer 33 of the TCF on the reasons he left Togo, the applicant said his uncle gave him 3 months to repay the money he took from the hotel. He left Togo before the deadline expired in March 2011 and before his uncle reported to the police and the army.

c.   There was no death threat mentioned in the TCF. This disparity undermined his credibility. In addition, his uncle had reported to the police. This was an indication that he would not take the law in his own hands. The adjudicator doubted the applicant’s fear that his uncle would kill him if refouled.[27]

iv)  Whether there was treatment for HIV patients

a.   Before the applicant left Togo, he was able to buy sufficient drugs to treat his condition for 3 months. This showed that HIV medicine was available in Togo.

b.   He told the adjudicator that he just got insufficient medicine from the government. This was contradictory to the statement in his TCF that he was turned down 3 times unable to obtain any medicine.[28]

c.   The applicant asserted that he would not receive treatment for his condition in prison. The adjudicator pointed out that the COI relied on by his legal representative did not reflect specifically on the treatment for HIV infected inmates.

d.   The law in Togo prohibited discrimination against HIV infected patients. The government was expected to act according to the law. It dissuaded discrimination by broadcasts.

e.   The hospital workers did give medicine to a few Ewes patients from the South despite they gave to the Northerners mostly. This showed that the workers worried about complaints of discrimination.

f.   The adjudicator pointed out various COI showing that the Togo government had improved accessibility of treatment for HIV positive patients. There was no indication that a different stance was adopted in prisons.[29]

g.   The adjudicator pointed out that there was a plea for improving the treatment in HIV positive inmates. The recent survey by the National Council showed that there was treatment but it was not sufficient. [30]

h.   There were ongoing improvements of prison conditions according to some COI. The National Commission for Human Rights and NGOs were given access to prisons and to receive complaints from inmates.[31]

i.   The applicant’s fear of ill-treatment because of his HIV condition was unlikely to materialize.

31.The adjudicator rejected that the applicant was involved in political activities. He was not targeted by the government. There was no torture as defined under s. 37U of the Immigration Ordinance. The torture ground failed.

32.The adjudicator found that there was no ill-treatment to a minimum level of severity. The COI demonstrated that medical treatment was available to HIV positive inmates although the situation was not satisfactory. The adjudicator applied the principles set out in N v The United Kingdom.[32] The applicant was not under exceptional circumstances which raise an issue under BOR 3. This ground failed.

33.The adjudicator concluded that the fear of reprisal from the government was unwarranted. The fear of persecution is not well-founded. The persecution ground failed.

34.The adjudicator concluded that there would not be personal and real risk that there would be arbitrary deprivation of his life. BOR 2 ground failed.

35.The adjudicator dismissed the applicant’s appeal on 11 July 2019.

GROUNDS OF THE INTENDED JUDICIAL REVIEW

36.In the amended Form 86 dated 9/3/2020, the applicant advanced the following grounds:

(1)  About the fear of the government, the adjudicator erred in finding that the applicant was not credible despite there was independent objective material supporting the applicant’s version of facts;

(2)  The adjudicator failed to consider that the Convocations would put the applicant in danger if returned to Togo.

(3)  The adjudicator erred in rejecting the wanted list despite Convocations were issued within 6 months against the applicant.

(4)  The adjudicator’s reasoning in rejecting the applicant’s fear of no treatment was perverse. He failed to consider the poor conditions and the discriminatory practice of the prison system in Togo.

(5)  The adjudicator down played the reality of the applicant’s case.

(6)  The decision was Wednesbury unreasonable.

DISCUSSION

Ground 1

37.Mr. Thomson, counsel for the applicant, complained that the adjudicator rejected the applicant’s fear of the government mainly because the FIT was not attached to the TCF.[33] In fact, there was evidence which supported the applicant’s fear. I understand Mr. Thomson’s argument as follows:

a.  The evidence of the applicant to the Director set out in the decision of the Director supported his fear[34]. The evidence is summarised in paragraphs 14—16 above. There is no need to repeat here.

b.  He further relied on the report published by the Immigration and Refugee Board of Canada on 29 May 2014.[35] That part of the report recorded media reports on the brutal treatment of ANC members by police and security forces in 2010—2013.

c.  He also pointed out that the prison conditions remained harsh and might be life threatening due to overcrowding, poor sanitation and disease. Prison officials sometimes withheld medical treatment from prisoners. There were inordinate lengthy pre-trial detention up to 65% of the prison population.[36]

d.  He argued that the issue of convocations and the circumstances of delivery by military officers supported the applicant’s fear if he returned to Togo. The convocations were issued in March 2011. It was after the applicant had departed Togo in February. The fact that the applicant could travel in and out of Togo before February could not discredit the applicant. In addition, the applicant had bribed a friend to get him through the Immigration check point in Togo further explained why he was not stopped.

e.  The adjudicator failed to appreciate that the applicant’s concern was his safety on return to Togo in view of the poor guarantees of legal rights and discrimination against Ewe as set out in the COI.

38.In my view, the following findings are relevant to decide whether the applicant was involved in political activities leading to his fear of the Togo government:

a.  The applicant did not mention his political involvement in answer 33 of the TCF compiled in 2014.

b.  He mentioned his political activities in the FIT compiled in 2011. However, he had not included the FIT in the TCF.

c.  The adjudicator pointed out that his political involvement was an important basis of his claim. He could not have left that out. In fact, he was assisted by his lawyer in compiling the TCF.

d.  The adjudicator noted that the applicant subsequently included the FIT in the SCF. However, there was no explanation why he only included the FIT at this stage.

e.  I have read the relevant part of the SCF, the applicant referred to the TCF and some attached documents including the FIT in support of his claim. He just left the inconsistency mentioned above unexplained. [37]

f.  In answer 49 of the TCF about association with any organisation, the applicant only mentioned the political affiliation of his grandfather and uncle. He did not mention his own affiliation with the UFC and ANC.

g.  The applicant explained that he did not pay attention to this part when the TCF was read back to him. The adjudicator found this incredible.[38]

h.  The applicant mentioned some names on the wanted list to the adjudicator during the hearing in 2017. He also did so during the interview by an Immigration Officer in 2015. Whereas, in the FIT compiled in 2011, he asserted that “Tony” did not tell him the other names on the wanted list. The adjudicator opined that the applicant should be able to recall better in 2011 than on the subsequent occasions. The adjudicator concluded that he was not truthful.

i.  The adjudicator pointed out that the convocations did not mention that the applicant was summoned to attend investigation sessions for anti-government activities.

j.  According to the evidence of the applicant, “Tony” told him about the wanted list in September 2010. Some people on that list were arrested. He thus stopped joining further demonstrations by the end of 2010. However, the applicant was able to travel to other countries from October to December 2010. This contradicted the applicant’s claim that he was wanted by the government.

k.  The applicant could leave Togo in February 2011 with the help from a friend whom he bribed. However, his travel to other countries in October to December 2010 could not be explained given he was already on the wanted list in September 2010.

l.  The adjudicator was justified in rejecting the assertion that the applicant was targeted by the government.

m.  The COI about treatment of demonstrators and prison conditions cannot support the applicant’s assertion that he was involved in political activities before he left Togo.

n.  In my judgment, the assertions in the TCF and FIT, the convocations and the wanted list are inter-related. The adjudicator was justified in taking all circumstances into account. His conclusion that the applicant did not involve in political activities was reasonable. Ground 1 is not reasonably arguable.

Ground 2

39.Counsel drew my attention to one convocation only at Bundle 4, page 777-780. It was dated 2 April 2014. The applicant was required to report to the Squad Commander, National Gendarmerie at 8 a.m. on 3 April 2014. It was for a judicial-administrative inquiry.

40.In fact, there are other convocations filed by the applicant. They are in Bundle 3, pages 564—573. They were as follows:

a.  One convocation dated 16 March 2011 at pages 564—565. The applicant was invited to appear before the public prosecutor at the Tribunal of First Instance. He was told to report with the amount in cause. He was reminded that there was risk of prosecution. Judging from the content, this summons was related to the letter dated 16 March 2011 by his uncle to the prosecutor[39]. His uncle alleged in the letter that the applicant had taken 9,350,000 CFA Francs from the hotel.

b.  One convocation dated 17 March 2011 at pages 566—567. The applicant was required to report to Autonomous Port Brigade of Lomé, on 18 March 2011 at 08 hours. It was for a judicial and administrative investigation. This should be the follow up of the earlier summons in (a) above.

c.  One convocation with unclear date in 2014 at pages 568 & 570. The applicant was required to report to Territorial Brigade of the National Gendarmerie of Lomé on 18 April 2014 at 9 am. It was for a matter concerning him.

d.  One convocation with unclear date in 2014 at pages 568 & 571. The applicant was required to report to Territorial Brigade of the National Gendarmerie of Lomé on 24 April 2014 at 9 am. It was for a matter concerning him. There was a sentence on the summons in handwriting: “Warning to a refusal again”.

e.  One convocation dated 18 April 2014 at pages 569 & 573. The applicant was required to report to the Deputy Police Officer at Place Colombe and Dove Place in Lomé on 24 April 2014 at 9 am. It was for a judicial and administrative investigation.

f.  One convocation dated 24 April 2014 at pages 569 & 572. The applicant was required to report to the same Deputy Police Officer at Place Colombe in Lomé on 25 April 2014 at 14 hours 30. It was for a judicial and administrative investigation.

41.Counsel argued that the adjudicator failed to consider that these convocations raised fear of harm to the applicant on his return to Togo. The fact that they were delivered by military personnel confirmed and aggravated the fear. The adjudicator failed to consider the comments of Amnesty International dated 15 May 2013 which supported the fear of the applicant if he was detained in prison.

42.The adjudicator pointed out that the convocations were issued after the applicant left Togo. There was nothing on the convocations which showed that he was required for investigation of his anti-government activities. Some convocations indicated he was required for a judicial or administrative investigation.

43.In my view, it is obvious when his uncle’s letter to the prosecutor is read together with the 2 convocations issued in March 2011, they were related to the taking of money from the hotel. They were not related to political activities.

44.As to the other convocations issued in April 2014, there is no clue about the exact nature of the investigation. For the convocation dated 2 April 2014 and the 2 summons with unclear dates, the applicant was required to report to the National Gendarmerie of Lomé. For the convocations dated 18 April and 24 April 2014, the applicant was required to report to the Deputy Police Officer. There were 2 convocations[40] which the applicant was required to report to the National Gendarmerie and the Deputy Police Officer at the same time but at different places. In my view, the applicant had the burden to clarify to the adjudicator the nature of these convocations. The bare assertion that they were connected with political activities is insufficient and speculative.

45.According to the applicant’s evidence in the SAT,[41] all these convocations were left to the woman selling food in front of his house in 2014. It is illogical that the 2 convocations issued in 2011 would be mixed with those issued in 2014 and served together in one lot. Had any of them concerned political activities, what is the reason for the delay of nearly 4 years. In fact, the applicant had stopped joining protests by the end of 2010. In my view, the applicant had the burden to clarify to the adjudicator the nature of these convocations. The bare assertion that they were connected with political activities is insufficient and speculative.

46.The comments of Amnesty International dated 15 May 2013 was about incidents of delay in providing health care and ill-treatment of inmates. Amnesty International pleaded for independent inquiry and improvement of prison conditions. However, these comments could not support the applicant’s fear that he was wanted for his political activities and that he would be similarly treated.

47.The applicant admitted in the TCF in 2014 that he had taken 5 million CFA Francs from the hotel. His uncle alleged that the amount was more than 9 million according to his letter to the prosecutor. According to the applicant, he needed 5,000 CFA Francs for medicine and 15,000 CFA Francs for the tests each month. The total amount would be 20,000 CFA Francs for treating his condition each month. Assuming it was true that he took the money for treatment, the total would be less than a million from 2008 to 2010[42]. The applicant had taken far more than needed for treatment. He had never explained fully in his evidence though he mentioned he used part of the money for visiting Dubai and Hong Kong. In my view, this should be the reason behind the issue of the 2 convocations in March 2011. It appeared that the applicant was a fugitive from justice.

48.According to the applicant, the convocations were left to the woman who sold things in front of his house albeit the plain clothes people were allegedly from the military[43]. These convocations were important documents by any standard, it sounds absurd that they were left to that woman who sold food there.

49.Taking all the above into consideration, the adjudicator was justified to reject the assertion that the applicant was wanted by the government for his anti-government activities. His fear based on the convocations was not substantiated by the evidence. I reject ground 2. It is not reasonably arguable.

Ground 3

50.Counsel criticised that in rejecting the wanted list, the adjudicator mainly relied on the inconsistencies in recalling names on the list. He failed to consider the applicant’s history of opposition to the government and the corroboration of the subsequent convocations.

51.The adjudicator pointed out that the applicant could not recall names in 2011 but did so in 2015 and 2017[44]. This was unreasonable. He also found that the applicant could travel around in October—December 2010. This was inconsistent with the assertion that the applicant was wanted.

52.As to the convocations, I have discussed the significance under Ground 2. The same applied here. In gist, there was insufficient evidence to show that the convocations were issued because of the applicant’s political activities. At least, the 2 convocations issued in March 2011 were related to his taking money from the hotel. The others were vague as to their nature.

53.In deciding the issue of the wanted list, the adjudicator must also have in mind the issue on the applicant’s political activities which he rejected. He did not decide solely because of the failure to recall names. I agree with the analysis of the adjudicator. Ground 3 is not reasonably arguable.

Ground 4

54.Counsel complained that the adjudicator relied on discrepancies in the TCF and the FIT in rejecting that there was fear of his uncle. In the TCF, the applicant asserted that his uncle gave him 3 months to repay. Whereas in the FIT, the applicant asserted his uncle threatened to kill him but had not allowed him time to repay.

55.Further, counsel pointed out that upon conviction, the applicant would be imprisoned. This would put the applicant in deplorable circumstances given he is HIV positive.

56.The adjudicator pointed out that the inconsistencies were material. In the TCF in 2014, there was no mention of any threat by his uncle to kill. The FIT in 2011 just mentioned the threat.

57.Apart from that, the adjudicator noticed that his uncle had written to the public prosecutor about the taking of money from the hotel. This led to the issue of 2 convocations in March 2011. I have discussed this in paragraph 40 (a) and (b) above. The adjudicator opined that his uncle preferred dealing with this according to the law. It was unlikely that he would take the law in his own hands.

58.There was no evidence how the applicant would be dealt with under the law in Togo for stealing such sum of money. At this stage, the adjudicator had found that the applicant was not a political activist. Counsel argued that there would be extended period of pre-trial detention.

59.It is true that according to USSD Human Rights Reports 2014, there was a risk of pre-trial detention. However, there was also special judges dealing with bail applications albeit inefficient. The applicant was only involved in theft and not offences of political nature. This assertion of extended period of pre-trial detention involved a certain degree of speculation.[45]

60.Counsel argued that if the applicant is convicted and imprisoned, his HIV condition would not be sufficiently supported. Counsel relied on the comment in a news webpage. [46] That page criticised the Togo government for inadequate treatment of HIV infected inmates. It is speculative to rely on that to infer the situation of the applicant if he is imprisoned or that the applicant would not receive any treatment. In my view, the fact that the applicant’s condition would be less favourably treated in Togo than in Hong Kong is not decisive in the context of Art. 3 of the Hong Kong Bill of Rights.[47]

61.In the circumstances, I do not think Ground 4 is reasonably arguable.

Ground 5

62.Counsel pointed out that the adjudicator ignored the possibility that the applicant had to obtain treatment by illicit means. The adjudicator ignored the poor conditions in Togo prisons which made treatment of HIV infected inmates even more deplorable. The adjudicator erred in relying on the COI which showed some improvements in prison conditions but ignored the substantial risk that the majority HIV infected inmates had no treatment at all.

63.Counsel pointed out that the legal provision prohibiting discrimination against HIV/AIDS patients would not deter discrimination in reality. It was wrong for the adjudicator to reject the fear that there would not be adequate treatment for the Ewes and others from the South.

64.In my view, the evidence supported the adjudicator’s view that there was medical treatment available in Togo. The applicant was able to obtain medication from JMAH. He purchased sufficient stock for 3 months before leaving Togo. There was no evidence to support counsel’s assertion that the applicant might have obtained the medication through illicit means.

65.The adjudicator also cited several COI which indicated that the government had taken positive steps to tackle the prevalence of AIDS in Togo.

a.  The UN Committee noted positive measures to refund antiretroviral treatment for HIV positive patients. However, the Committee urged more funding on the protection against HIV/AIDS. Equal access of the antiretroviral treatment to the whole country and stable funding to prevent interruption of the treatment.[48]

b.  The UNAIDS director commended the Togo government as access to antiretroviral treatment had doubled since 2008. The Prime Minister expressed commitment to more domestic spending on AIDS.[49]

c.  Togo had reduced the new HIV infection by 50% and death rate dropped by 30% due to free treatment program since 2008.[50]

d.  The adherence to ART program had increased from 20% to 49% in Togo at the regional hospital of Sodoké. This program was beneficial in reducing the risk of emergence of HIV resistant strains.[51]

66.Despite the progress in treatment of AIDS in Togo, the situation in prison was unclear. The adjudicator cited the following to support there was treatment though inadequate:

a.  A commentary in iciLome.com dated 17/8/2015 citing the findings of the National Council for the Fight against AIDS that HIV inmates were not sufficiently supported. Out of 170 diagnosed with the virus only 18 were under treatment. This showed that prisoners in Togo received treatment though far from adequate. There was an increase rate of HIV infection in prisons. [52]

b.  There was an article on the study of HIV prevalence in Togolese prisons. HIV care and treatment was uncertain in prison. Little effort had been made to prevent sexual transmission of HIV in Togolese prisons. [53]

c.  The adjudicator cited USSD Report 2014 to demonstrate there was complaint channels (CNDH) to investigate human rights abuses and independent monitoring by international human rights organisations.[54] The applicant could complain if he was not given treatment if imprisoned. There was State protection against such risk.

67.In the hearing bundle, the only commentary which touched on the treatment of HIV/AIDS inmates is the iciLome.com cited in paragraph 66(a) above. It reported the survey of the National Committee for the Fight against AIDS that out of 170 diagnosed inmates only 18 were under treatment. Unfortunately, the original survey report was not available. The only conclusion that could be drawn is that HIV/AIDS treatment was far from adequate. It however contradicts the applicant’s assertion that there would not be any treatment.

68.The article entitled ‘HIV and incarceration: prisons and detention’ discussed the measures to minimise spreading of HIV/AIDS in prison. There is nothing about treatment of the HIV positive inmates in Togolese prisons.[55]

69.The expert report by Professor Benjamin N. Lawrance of the Rochester Institute of Technology touched on the treatment of HIV/AIDS in general. It found that only 33 % of those infected had access to ART or treatment of any kind. The report did not discuss the treatment of HIV/AIDS in prison.[56]

70.Although there is evidence that the Togo government has been adopting positive measures to improve the treatment of HIV/AIDS in Togo, this does not necessarily apply to the prisons in Togo. The only reasonable conclusion is that in Togo prisons, the treatment of HIV/AIDS is far from adequate.

71.In these circumstances, the principle set down in N v The United Kingdom is applicable. That case concerned the applicant (‘N’) who entered the UK in March 1998 from Uganda. She was HIV positive. In August 1998, she developed a second Aids-defining illness. In 2001, a medical expert opined that if her drug treatment was not maintained, her life expectancy would be less than a year. The medication would only be available in Uganda at considerable cost and in limited supply. The Immigration Tribunal allowed her application for protection because of her medical condition based on ill-treatment under Art. 3, ECHR[57]. The decision was overturned in the Immigration Appeals Tribunal and the Court of Appeal. The House of Lords rejected her appeal. ‘N’ petitioned to the European Court of Human Rights. The Court agreed with the House of Lords holding that removing the applicant to Uganda would not violate Art. 3 of the ECHR. The Court set down the following principles after reviewing past case-law.[58]

a.  Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State.

b.  The fact that his life expectancy would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3.

c.  The facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.

d.  Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.

e.  The same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.

72.As found by the adjudicator, the applicant was not involved in politics. Removal to Togo would not put him at risk of deliberate, political ill-treatment. His assertion that there would be lengthy pre-trial detention involves certain degree of speculation. The Togo government had taken positive measures in improving access of treatment in HIV/AIDS and improved prison conditions. The applicant is not critically ill at present. There is no compelling humanitarian ground against removal.

73.Counsel drew my attention to the expert report by Professor Benjamin N. Lawrance of the Rochester Institute of Technology. This report was attached to the FIT in the application for refugee status in 2011. This expert report was not referred to in the closing submission of the applicant’s lawyer before the TCAB. That might be the reason that the adjudicator had not refer to it. Be that as it may, I have the following observations about the report:

a.  The Togo government had been targeting political activists who opposed the government. Torture, detention and extrajudicial killing occurred. However, given the findings that the applicant was not a political activist, the applicant would not be at personal risk because of this situation.

b.  Professor Lawrence estimated that about 33% of HIV/AIDS patients received treatment of any kind. However, he did not mention JMAH which according to the applicant was a reliable source of treatment for his condition.

c.  The report did not examine the situation in prison. However, it is accepted that treatment for HIV/AIDS should be far from adequate.

74.In my view, while the situation in Togo is far from satisfactory, given the findings of the adjudicator that the applicant was not involved in politics, Professor Lawrence’s report could not take the applicant’s case any further.

75.Counsel also referred me to the case of Salakhov and Islyamova v Ukraine.[59] Counsel argued that this case modified the principle in N v The UK. It established that a country had a duty to provide prompt medical care for its detainees.

76.In Salakhov, the applicant was detained pending trial for an offence of robbery in November 2007. He was tested HIV positive earlier in February 2006 but he had not informed the detention authorities. His condition deteriorated gradually during detention. In June 2008, he was examined by the Chief Doctor of the Central Hospital several times. The doctor found that he did not need urgent hospitalisation. The applicant was fined by the court in July 2008 for fraud instead of robbery. He was released and died on 2/8/2008 of AIDS related conditions. Expert report[60] concluded that the Chief Doctor of the Central Hospital failed to provide prompt medical assistance. The Strasbourg Court found that the doctor of the Central Hospital failed to provide timely and adequate medical assistance. Given that the Central Hospital was a public institution, the State was responsible.[61] This conduct violated Art. 3 of the ECHR.

77.Salakhov established that the State must provide prompt medical assistance to its detainees. The case did not turn on the removal of an alien with serious medical condition from the Contract State. It did not modify the principles set down in N v The United Kingdom.

78.Having considered the above, I do not think this ground is reasonably arguable.

Ground 6

79.Counsel argued that the TCAB decision was perverse and against logic. Given the analysis above, I reject this ground.

Delay in the leave application

80.The applicant did not file the leave application within 3 months of the TCAB decision dated 11 July 2019. He only filed the leave application on 25 October 2019.

81.The applicant was out of time by about 2 weeks. He should have applied for extension of time. In his second affirmation dated 12 December 2019, he explained that the DLS explained the decision to him on 17 July 2019. He was advised that there were merits for judicial review. He had applied for legal aid on 29 July 2019. He had little money but in any event lodge his leave application on 25 October 2019. He asserted that the delay was due to the time for the Director of Legal Aid to consider the merits of his case.

82.In considering whether there is good reason for extension of time for judicial review, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension of time was granted.[62]

83.The explanation for the delay is not convincing. He should have filed the leave application while waiting for the outcome of legal aid application. He might have financial difficulties but that cannot be a strong reason.

Conclusion

84.From the analysis above, I conclude that there is no error of law or procedures. The decision of the adjudicator is rational. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. In the circumstances, there is no good reason for extending the time for the leave application. I also refuse leave for the intended judicial review.

85.I order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Neil Clarke Thomson, instructed by Massie & Clement for the Applicant