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

HCAL 213/2019

[2022] HKCFI 813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 213 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 4 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 

2.The applicant did not request a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.  

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party. 

The applicant

4.The applicant is a national of Togo.  He entered Hong Kong as a visitor on 18 September 2012 but he did not depart when his limitation of stay expired.  He had overstayed.  On 3 October 2012, he was arrested by the police.  Two days later, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed because he was a member of National Alliance for Change (“ANC”). 

5.According to the applicant, he joined the ANC in 2010.  ANC was an anti-government group and the Togo government often expressed resentments against the members of ANC.  The applicant claimed to participate in various protests which were always ended up being dispersed by the military with tear gas and baton or even guns.  In particular, the applicant mentioned a protest in April 2010 when he was hit by the military with batons several times. Further, he also claimed to be discriminated as a southerner.  Another incident occurred in around January 2012 when the military paid unexpected visits to the applicant’s house.  Convinced that his life would be in danger, the applicant started moving around to hide from the military before he eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 12 of the Notice of Decision dated 9 August 2016 by the Director (“the Director’s First Decision”) and paragraph 28 of the Board’s Decision described below. 

The Director’s Decisions

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

a.       risk of torture under Part VII C 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”). 

7.It is pertinent to note that, before the Director, although the applicant was represented by duty lawyer, he first indicated that he required a French interpreter to assist in his screening interview.  Nevertheless, he subsequently insisted that the assistance of a Mina interpreter should be provided as he could not fully understand the French spoken by the interpreter.  The Director rejected such request on the bases that (i) no Mina interpreter was available for the applicant’s scheduled screening interviews, and (ii) more importantly, it was evident that the applicant was able to complete the non refoulement claim form with the assistance of a French interpreter and that he was not deprived of a reasonable opportunity to establish his claim.  After numerous exchanges between the Director and the applicant’s duty lawyer, the applicant was able to submit the question sheets with the assistance of a French interpreter but his request for a screening interview was denied by the Director because (i) previous opportunities for screening interviews were given to the applicant but were canceled due to his insistence upon a Mina interpreter and (ii) no further clarification in relation to his non-refoulement claim was required [5]-[10]. 

8.By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and the Persecution risk.  The Director found that no substantial grounds were present for believing that the applicant would be harmed or killed by the police, military or other authorities of Togo government upon refoulment because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [19]; (ii) state protection would be available to him [20]; and (iii) internal relocation was an option open to him [21].  In the Notice of Further Decision dated 8 August 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence that his right to life would be violated upon his refoulement. 

9.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  He was legally represented and the grounds of appeal were summarized at paragraphs 46 to 47 of the Board’s Decision.  The parties’ respective submissions before the Board were also summarized at paragraphs 50 to 62, and paragraphs 117 to 142 of the Board’s Decision.  The applicant also submitted further documents on the current situation of Togo [63]. 

11.At the oral hearing before the Board on 13 April 2018, both the applicant and the Director were legally represented.  The applicant was also assisted with a French interpreter with the caveat that, if the applicant failed to understand the interpreter, he could raise objections.  It was noted that no objection was raised during the hearing.  While the applicant encountered difficulties in one point, he confirmed that he could communicate effectively and understand the proceedings [65]-[71]. 

12.The applicant adopted his written statements and elaborated on the further documents submitted to the Board.  He was subjected to cross-examinations and he also answered inquiries from the Board [73]-[112]. 

13.Having considered all the evidence and the parties’ submissions, the Board made the following findings in relation to the credibility of the applicant’s claim:

1.  The applicant had provided a reasonably detailed and consistent account of his past experience in Togo, which was also corroborated by some of the country of origin information (“COI”) [145]-[148];

2.  However, several material aspects of the applicant’s claim were unsupported by any documentary evidence or failed to reconcile with the COI [149]-[152];

3.  The applicant’s membership with the ANC was also questionable, such as the date of his membership and the possibility that he might no longer be a member of ANC [153]-[154];

4.  The applicant’s accounts on the January 2012 visits from the military were also inconsistent and implausible.  His claim that the ANC members were tortured or killed also lacked evidence to support [155]-[156];

5.  The fact that he was not arrested by the relevant authorities of Togo when he was in and out of the country contradicted with his assertion that he was wanted by the government [157]-[160]. 

6.  All considered, the Board found that the applicant’s claim lacked credibility. 

14.The Board also rejected the applicant’s claimed risk of harm as a returnee or failed asylum seeker as it did not sit well with the relevant COI [167].  Further, there was no evidence suggesting that southerners were targeted or discriminated since they had relative dominance in commercial private sectors [168]. 

15.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal. 

Application for leave to apply for judicial review

16.The applicant filed Form 86 on 23 January 2019 for leave to apply for judicial review of the Board’s Decision. 

17.In his affidavit in support of his application, he enclosed the hearing bundle without specifying any specific ground in support of his application. 

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.It is apparent that the Board had rejected his evidence on the facts of his claim.  The applicant does not have any valid ground to challenge the Board’s Decision. 

22.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 

23.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review. 

CONCLUSION

24.I therefore refuse to grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application. 

Dated the 28^th day of March 2022

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