Ilumueni Nzuzi Ilous v. Torture Claims Appeal Board / Non-refoulemnt Claims Petition Office

CACV 179/2022

[2022] HKCA 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2022

(ON APPEAL FROM HCAL NO 1630 OF 2021)

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BETWEEN

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Before:  Hon Yuen JA and Lisa Wong J in Court

Date of Written Submissions:  19 July 2022

Date of Hearing:  8 August 2022

Date of Judgment:  29 August 2022

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.On 15 February 2022, DHCJ K.W. Lung (“the Judge”)  refused to grant an extension of time to the applicant to apply for judicial review and dismissed his application to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 31 May 2021 (“the Board’s Decision”).  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 20 September 2017 which refused the Applicant’s claim for non-refoulement protection.

2.On 5 May 2022, the applicant filed a Notice of Appeal against the Judge’s decision. 

The applicant’s case

3.The Applicant is a national of the Democratic Republic of the Congo (“the DRC”).  He was born and raised in Kinshasa, the capital of the DRC, and lived in a commune there until April 2005.  His father was an officer in the Immigration Department.  In 1998, the applicant started cohabitation with a woman with whom he had 4 children. 

4.The applicant ran a photographic studio business in Kinshasa from 1998 to 2005.  As part of his work, he also took photographs for the Technical Bureau of the Ministry of Defence (“MoD”)  from 2001 to 2005 under Direction de la Presse et de L’Information.  Mostly his work as a photographer included taking pictures of new recruits and documenting military events.  There were two photographers (including the applicant)  and one cameraman in his team.  The applicant’s evidence (which was not rejected by the Board)  was that, although the other team members were with the army, he was a civilian.

5.In January 2005, a war broke out between the DRC and Rwanda.  The team was dispatched to Goma, in the eastern part of the DRC, to document the event.  The applicant assumed that his mission was to take pictures of new recruits but after arriving at Goma, the team was sent to the frontline of the war zone.  The applicant was overwhelmed by the experience of witnessing persons being killed there.  A month later, without seeking permission from the MoD, the team fled from Goma and the applicant managed to return home. 

6.A week later, a military truck arrived at the applicant’s home at Kinshasa, with about 11 people in military uniform, who took him to MoD premises.  There he was taken before Colonel Kasongo (“Colonel K”), the Director of the Military Press.  Colonel K ordered some soldiers to assault the applicant.  His knees were badly beaten with batons and clubs, and he sustained a wound on his back.

7.Although the applicant was injured, he was not given medical treatment.  He was then taken to Makala Prison.  In the course of detention there, he was assaulted (including sexually) by inmates but the assaults were ignored by the prison guards. 

8.Eventually, through an arrangement made by his father, he was rescued from prison, given a passport by his rescuers and boarded a plane which took him to South Africa.

9.The applicant arrived in Hong Kong on 27 April 2005 and was permitted to stay as a visitor until 11 May 2005.  His application to the UNHCR to be recognized as a refugee was rejected in 2006.    

10.On 1 June 2009, he surrendered to the Immigration Department and lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by written signification, alleging that if refouled, he would be harmed or killed by the DRC Army or relevant authorities because (i)  he had left his mission as a photographer in the war zone without permission and (ii)  he escaped from prison and was on the wanted list of the DRC government. 

11.The applicant claimed that he had received news clippings from a friend showing that search notices were issued against him between 2005 and 2007.  In 2007, his friend told him that someone had broken into his (the applicant’s)  father’s house at night, and killed him.  He believed that the incident was connected to his escape from prison and that the killers were sent by the DRC government.  The applicant also learnt from a visitor he came across in Hong Kong that his two daughters went missing in 2013. He believed that this was also related to what he had done.

12.The applicant’s torture claim was rejected the Director on 19 September 2013, and his appeal was rejected by the Board on 10 March 2014.  The decision of the Board was not placed before this court.  There was no application for judicial review of the Board’s decision. 

13.In any event, before the decision, on 27 September 2013, through his legal representatives, he lodged a non-refoulement claim on the basis of BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3].

14.By a Notice of Decision dated 20 September 2017, the Director assessed the applicant’s claim on the above grounds and determined it against him.

The Board’s Decision

15.The applicant lodged an appeal to the Board against the Director’s decision dated 20 September 2017.  The appeal was heard on 30 April 2021, and in a decision dated 31 May 2021, the Board rejected the appeal/petition and confirmed the Director’s decision.  

(i)  BOR 3 risk

16.The Board accepted the applicant’s evidence that he was a civilian member of the team sent by the MoD, but found that the applicant had “abandoned his mission without permission of the MoD.  He clearly was in breach of his duty and as a result, he was taken into custody.  Yet, he escaped from his custody, which prima facie was a lawful one”.[4] This view of the nature of the applicant’s custody underpinned the Board’s Decision.

17.Thus the Board found that the applicant “is more a fugitive from justice than a victim of injustice”.[5] 

18.Although the Board accepted the applicant’s evidence that he was beaten by soldiers under Colonel K’s orders, it took the view that it was only a single incident of abuse of power by Colonel K, and there was no evidence that Colonel K’s action was sanctioned by the government of the DRC.[6]

19.Regarding the search notices, the Board noted that they referred to an escaped prisoner from General Hospital of Kinshasa instead of from Makala Prison, which cast doubt on the applicant’s evidence that he had been sent to prison.  It is not clear from the Board’s Decision whether the applicant had been questioned about this inconsistency and what his answer was, if any. 

20.However, the Board found that in any event, it was legitimate for the authorities to issue notices to the public for information regarding persons “who escaped from lawful custody”. 

21.The Board also found that the alleged incidents regarding his father and daughters were hearsay without any proof.[7] The Board was entitled to so find as he alleged that he heard about his father’s killing only from a friend, and it appears that from 2007 (when he heard about it from his friend)  to 2021 (when he appeared before the Board)  there was no confirmation from other members of his family.  The same applies to the daughters, as he alleged that he heard about the incident only from a visitor he “came across” in Tsimshatsui.  There has been no confirmation from other members of his family.     

22.Turning to the applicant’s allegation that if he were arrested, he would be tortured or ill-treated by the authorities, the Board referred to the country of origin information (“COI”)  of the DRC, and took the view that despite alarming human rights issues, including unlawful killings, sexual and gender-based violence, and the lack of steps taken by the authorities to remedy these issues, there are other objective COI suggesting reforms are underway to improve the situation and the government supported prosecution of serious human right abuses.  Pausing here, it would be noted that the Board had taken this view in the context of its conclusion that Colonel K was not a state actor, a matter that will be discussed in para 43 below.  

23.The Board further held that even if the applicant may face the risk of arrest when he returns to the DRC, “this is a legal consequence arising from his own wrongdoing”.[8]

24.As for the issue of internal relocation, the Board agreed that the applicant would have difficulties hiding from the authorities, but repeated its view that “this is a legal consequence arising out of his wrongdoing”.  

(ii)  BOR 2 risk

25.For the same reasons as stated above, the Board found no evidence to support the applicant’s claim under this head.[9]

(iii)  Persecution risk

26.The Board found that the applicant had “abandoned his mission without permission and escaped from lawful custody”.  Accordingly, there was no persecution arising from his race, religion, nationality, membership of a particular social or political opinion at all, and his claim under this head also failed.[10]

27.For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds and the Director’s decision was confirmed.

Decision of the court below

28.On 1 December 2021, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.  Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s intended application for judicial review was made out of time.

29.In his affirmation in support of his application, he did not explain the delay, and merely complained that the decisions of the Director and the Board were unsafe and unfair as they were based on assumptions and inferences.

30.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  In the decision dated 15 February 2022, the Judge refused to extend time to the applicant to apply for leave for judicial review and dismissed the application.  The reasons for the refusal were set out at [12] – [18] of the Form CALL-1 as follows:

“12. As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The delay of 3 months is significant and serious. I shall, nevertheless, first consider the merit of the applicant’s case.

13. 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 applicant’s 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).

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

15. 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.’

16. The applicant has not raised any valid ground to challenge the Board’s Decision. The reasons given by the Board are clearly not based upon assumptions or inference. They are the facts given by the applicant.

17. 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.

18. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.” (Underlining added).

Appeal to this Court

31.By the order of the Judge made on 21 April 2022, the applicant was granted an extension of 14 days from 21 April 2022 to file his Notice of Appeal.  The applicant filed the same on 5 May 2022.

32.The applicant explained his delay in lodging the Form 86 as he said he was in detention.  Whether that is a satisfactory explanation or not, the most important consideration is whether he has merits in his application for judicial review of the Board’s Decision.

33.The Notice of Appeal contained the following grounds:

(1)  Ground No.1 was a general ground stating that the Judge erred in his assessment of the prospects of success of his intended judicial review.

(2)  Ground 2 stated that the Judge failed to consider the following:

(a)  the Board relied on too high an evidentiary threshold in requiring strict evidentiary proof, in that the Board erred in its application of evidentiary principles on (i) hearsay and (ii)  documentary evidence;

(b)  the Board erred in law in failing to take into account the COI; and

(c)  The Board erred in law in failing to consider the relevant legal principles relating to persecution of deserters and persons avoiding military service, and erred in law in failing to consider the relevant legal principles relating to (i)  risk of harm and/or past injury and (ii)  state acquiescence and/or state actors.

34.At the hearing of this appeal, the applicant was represented by Mr Deng, who submitted that as the Judge only set out brief reasons at [16] and [17] of his decision for dismissing the application, and fully endorsed the findings and conclusions of the Board without any detailed analysis, it is appropriate in this case to focus on the Board’s decision if it was flawed in the public law sense. We would add that in [16] of the Form CALL-1, the judge held that the reasons given by the Board were not based upon assumptions, which we will discuss in para 38 below.  

35.Mr Deng submitted that:

(1)  the Board failed to properly consider and apply the proper concept of “fugitive from justice” in relation to persecution risk and/or failed to take into account relevant evidence when holding that the applicant was a fugitive from justice;[11]

(2)  the Board had misapplied the legal principle in Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743 at [172] in failing to properly consider if there is substantial ground to believe if there is a “real risk” of harm if the applicant is refouled especially if he were to return to prison;[12]

(3)  the Board failed to take into account a significant number of adverse comments which point to the institutional deficiency of the DRC Government in protecting human rights within the country and prosecuting abuses.  The Board also failed to take into account the condition of the country’s prison conditions which poses serious threats to life and health of prisoners;[13]

(4)  the Board erred in law in rejecting the claim under BOR 3 risk and ruled against the applicant on the issue of credibility.  Even though the Board had accepted the applicant’s case that he was a photographer who had abandoned his mission without permission after he was sent to a war zone, and since it was part of the applicant’s case that he was subject to violence at Makala Prison before leaving the country, the Board cast doubt on his allegation that he was taken to a prison only by referring to the search notices which referred to an escaped prisoner from the General Hospital of Kinshasa and failed to give any other reason;[14]

(5)  there was good reason for the applicant’s delay in filing his application for leave to apply for judicial review as the applicant was all along imprisoned/detained by the Immigration Department;

(6)  if the Judge had considered the submissions raised above, he would have found strong merits in the intended judicial review and should have granted an extension of time and allowed his leave application.[15]

Legal principles

36.In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

37.In our view, the main issue is whether there has been a proper consideration and application of the concept of “fugitive from justice”.  It appears that both the Board and the judge did not appreciate the importance of the evidence (which the Board accepted)  that the applicant was only a civilian.  As such, his only duty to the MoD was a contractual duty to take photographs. 

38.His premature departure from the front line might have been a breach of his contractual duty, but it was assumed by the Board and the judge that this breach of contractual duty became a contravention of army (or other military)  regulations justifying detention at law (see the references by the Board to “lawful custody” and “fugitive from justice”), when there was no evidence that the applicant’s breach of contractual duty amounted in DRC law to “desertion” punishable as a criminal offence.  The applicant’s case that his unauthorised departure from the front line was why he was assaulted and detained on the orders of Colonel K did not amount to evidence of any law of the DRC that transformed a civil breach into a criminal offence.  It is interesting to note that the UNHCR Handbook provides at [60] that “due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick”.  On this basis, if the applicant had merely committed a civil wrong for breaching his contract with the MoD, his imprisonment would contravene Article 7 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap.383).[16]

39.The unjustified assumption by the Board and the judge that the applicant’s breach of contractual obligation was transformed into a breach of army regulations or a criminal offence is pivotal, as it impacts on the lawfulness (or otherwise)  of his detention, there being no evidence of any proper prosecution (eg arrest by the police on suspicion of commission of any crime, or orders for his custody made by any court, civil or military).

40.Indeed, in certain circumstances, even an official prosecution of a criminal offence may amount to persecution.  In [57] – [59] of the UNHCR Handbook, it is said:

“57.   The above distinction may, however, occasionally be obscured.  In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition.  Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child)  may in itself amount to persecution.

58.  Secondly, there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well-founded fear of persecution”.  In such cases the person concerned is a refugee.   It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.

59.  In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards.  More often, however, it may not be the law but its application that is discriminatory.  Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.”

41.The above provisions have been considered when determining whether an applicant is a fugitive from justice or not: KM and others v Torture Claims Appeal Board [2020] HKCFI 640 at [63]. 

42.In the present case, the Board accepted the evidence that (a) the applicant was a civilian, (b)  he was detained and ordered to be assaulted by the director of the Military Press for breach of only a contractual obligation, (c)  he was detained but escaped (although the search notice provided by the applicant presented an inconsistent case as to where he escaped from), (d)  the army had been looking for him and (e) the army would be likely to find him if he returned to the DRC.  The Board primarily rejected his claims on the ground that he was a “fugitive from justice”, when there was no evidence of a prosecution for a criminal offence, or any other justification for treating him, a civilian, as a deserter subject to military sanctions.  With respect, the judge failed to notice this point. 

43.Further, when the Board found at [46] of its Decision that there was no evidence that Colonel K was a “state actor”, it appears to have neglected the fact that Colonel K was the Director of the Military Press, and there was no evidence of any private disagreements between him and the applicant in the past.  As such, the punishment the colonel imposed on the applicant would appear to have been imposed by him as an agent of the state.  The Board’s view that the colonel was not a state actor may well have impacted on the Board’s approach to the COI. 

44.For the above reasons, we consider that Grounds 2(b)  and (c)  are suitable grounds for leave for judicial review.  Mr Deng asked that the grounds in the Notice of Appeal signed by the applicant in person be re-formulated, which we allow but only in accordance with the reasons set out in this judgment.  Out of an abundance of caution, we would clarify that the leave given does not include grounds in Ground 1 or Ground 2(a)  which are only couched in general terms.

Order

45.For the above reasons and on the above basis, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676.

46.We would therefore allow the appeal, set aside the judge’s order of 15 February 2022, and grant leave to the applicant to apply for judicial review on Grounds 2(b)  and 2(c)  of the Notice of Appeal.  In accordance with Order 53 Rule 5, the applicant should file and serve an originating summons within 14 days from the date of our judgment. 

Mr Earl Deng, instructed by Patricia Ho & Associates, for the applicant