Nc v. Torture Claims Appeal Board

HCAL 499/2020

[2022] HKCFI 3388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 499 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  leave to apply for Judicial Review be granted;

2.  costs be in the cause; and

3.  the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of the Democratic Republic of Congo (“DRC”) (formerly known as Zaire) who arrived in Hong Kong on 18 September 2003 on a suspected fake passport, and when she was refused entry by the Immigration Department, she sought a refugee status from UNHCR, and after it was refused by UNHCR in 2009, she then raised a torture claim later taken as a non-refoulement claim for protection on the basis that if she returned to the DRC she would be at risk of:

(a)  being harmed or killed by the associates of President Kabila and/or the military, the police and other state authorities under his current regime due to her family’s involvement in and/or support of the former President Mobutu regime and/or her relationship with and escape from and theft of money and gems from a commander of the rebel military group the Congolese Revolutionary Army;

(b)  being interrogated, arrested, detained and thus tortured or ill-treated by the DRC government for being a foreign national offender by reason of her past convictions and the use of a fake passport when she left the country and as a failed asylum seeker;

(c)  being targeted for rape and sexual violence by her imputed political opinion, kinship or ethnicity;

(d)  being persecuted on basis of her ethnic background as a Ngbandi, a group closely connected with the Motubu regime;

(e)  being deprived of appropriate medical care and treatment for her health conditions including cancer and HIV.

Backgrounds

2.The Applicant was born in Likasi, Katanga Province, DRC then known as Zaire of the Ngbandi and Kawunda (Katanga) ethnic tribe or group, and as a child she moved with her family to Lubumbashi of the same province, and later when her father was made a general as General Nzimbi to be responsible for the personal security of the then President Mobutu, they then moved to a military camp in capital Kinshasa.

3.In 1986 the Applicant married her husband who was a colonel in the Mobutu’s government with his father also a senior member of the Mobutu’s regime and a close friend of the Applicant’s father, and made their home with their 2 sons in Limete and Gbadolite where her husband was posted with the military.

4.In 1996 tensions from the civil war and genocide in neighbouring Rwanda spilled over to Zaire with the Rwandan Hutu militias fleeing from the Tutsi-led government and making their base in Zaire, which later allied with the Zairian rebel military group and then erupted in rebellion against the Mobutu regime led by Laurent-Desire Kabila of the Alliance of Democratic Forces for the Liberation of Congo-Zaire (“AFDL”) in what would to become the First Congo War, during which the Applicant’s husband was deployed by the military to Kinshasa to stop the uprising by AFDL, leaving his family in Gbadolite in the care of his security officer Lieutenant Abouba.

5.Later when Gbadolite was overrun by the rebels, Lieutenant Abouba managed to help the Applicant’s sons to make their escape, but the Applicant was captured by the rebel military group M23 Movement also known as the Congolese Revolutionary Army, and was repeatedly raped by them including their commander Akwarere, who then brought her to his home in Gisenyi, Rwanda close to the border with Zaire where she was kept as his sex slave, and for which she was infected with the HIV virus.

6.In 1997 President Mobutu fled Zaire into exile in Morocco, and AFDL later marched into Kinshasa with Kabila naming himself president and reverted the name of the country to DRC, but the war continued with the Rwandan Tutsi-led militias, during which the Applicant’s husband was later killed in 1999.

7.While in Rwanda the Applicant was moved from place to place by Akwarere who also dealt in gold and diamonds for the purchases of weapons for Kabila’s army with the assistance of a woman named Sifa, and with whom the Applicant later became a friend and was allowed by Akwarere to travel with her to various neighbouring countries for his diamonds trading business.

8.In 2003 the Applicant was able to persuade Sifa to help her to escape from Akwarere by giving her some diamonds stolen from Akwarere in their last business trip through Rwanda, Tanzania and Zimbabwe to South Africa together with Akwarere’s military doctor named Lambert and Sifa’s husband Vincent who were willing to help the Applicant with her escape, and for which the Applicant also stole US$30,000 from Akwarere for her escape.

9.With a South African passport under a different name supplied by Sifa’s husband, the Applicant in early September 2003 travelled with Sifa to Hong Kong in transit with the intention of seeking asylum protection in UK, and on 16 September 2003 she departed Hong Kong for UK via Bahrain, but when she was not allowed to board the flight for UK, and was deported from Bahrain to Hong Kong on 18 September 2003, and when she was refused entry by the Immigration Department, she then applied to the UNHCR for a refugee status and subsequently revealed her present identity as a DRC national. 

10.On 18 February 2008 her refugee status was canceled by the UNHCR, and on 8 May 2009 she then raised a torture claim with the Immigration Department later taken as a non-refoulement claim, for which she first completed a Torture Claim Form (“TCF”) on 12 February 2014, followed by a Supplementary Claim Form (“SCF”) on 11 December 2014, and attended screening interviews before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

11.While being released on recognizance pending the determination of her claim, the Applicant was arrested by police on 13 December 2011 for the offences of conspiring to deal with property known or believed to represent proceeds of an indictable offence and for using a false instrument, for which she was subsequently convicted and sentenced to prison for 27 months.

Director’s Decision

12.By a Notice of Decision dated 21 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

13.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies discrepancies and lack of details in her account of events occurred in DRC before her departure that the credibility of her claim was found doubtful, that it was further undermined by her use of a fake passport and for making false representation of her identity to the Immigration Department, that in any event it is not accepted that she would be subjected to being harmed or killed upon her return to DRC as objective Country of Origin Information (“COI”) show that persons closely associated with the previous Mobutu regime were no longer at risk of persecution upon their return to the country that it is not accepted that she would be at such risk due to her family’s involvement in the previous regime, that there is no evidence of any power or ability of Akwarere to harm her or even any information of his present whereabouts given that he was originally from Rwanda, and that state protection would be available to the Applicant upon her return to DRC that it is not considered that her feared ill-treatments would materialize.

14.On 5 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 16 August 2019 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made by her lawyer on her behalf. On 3 January 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

Board’s Decision

15.In its decision the Board accepted that the Applicant is probably a victim of rape on basis of the human rights situation in her home country as revealed in objective COI, and that she is infected with HIV and suffers from other chronic illnesses as supported by medical evidence, but found that she would be able to obtain the necessary health care from the DRC government and/or to approach NGOs for social moral and financial support and/or to be taken care of by her aunt in DRC, while state protection would also be available to negate her claimed fear of sexual violence or harm due to her ethnicity and gender, and rejected the credibility of her claim of risk of harm from Akwarere or the current DRC government or President Kabila regime or the police or military or authorities due to her or her family’s association with the former Mobutu regime or her imputed political view by reason of her ethnic origin on the basis of its following findings and reasons:

(1)  That the Applicant was evasive about her previous application for refugee status with the UNHCR and her actions after the subsequent cancellation of her refugee status by the UNHCR in 2008 ([81] – [85] of Decision);

(2)  That she stated her father’s name as different from the name of General Nzimbi in her papers submitted to the Director earlier in 2003 and which she failed to clarify during her appeal hearing before the Board ([86]);

(3)  That her evidence about her relationship with Akwarere was vague and inconsistent despite being put as his wife and yet was unable to tell much about him, while her evidence in relation to where she resided with Akwarere was also inconsistent ([87] – [92]);

(4)  That her evidence about her relationship with Sifa including how she joined the trade which led to her flight was vague and inconsistent, that it was difficult to accept that she would seek help from Sifa as the wife of a commander, or that Sifa and her husband would have fled with her too ([93] – [99]);

(5)  That her account of her stealing money and jewels from Akwarere was uncertain and inconsistent ([100] – [102]); and

(6)  That the information supplied by her about Lambert was unreliable and that it was implausible that Lambert being a friend of Akwarere would have assisted her escape or that she would have trusted him not to inform on her plan to escape ([103] – [106]).

16.The Board accordingly found the Applicant’s evidence that she came from a military family totally unreliable, and that even if she were the daughter of General Nzimbi, it rejected her evidence in respect of her abduction by and relationship with Akwarere and the circumstances in connection with her flight, and concluded that she had failed to show that she is personally at risk of any harm from Akwarere or former associates of Mobutu or the current DRC government or President Kabila regime or from any ethnic group conflicts that her claim for non-refoulement protection failed on all the applicable grounds.

Leave for Judicial Review

17.On 6 April 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as amended for her intended challenge:

(1)  That the Adjudicator’s assessment of the Applicant’s credibility is flawed in that it wrongly relied on unfounded assumptions, speculations and supposed inherent implausibility in her claim and on matters not put to her in evidence at the hearing;

(2)  That the Board’s analysis of whether the Applicant would be at risk of rape or other sexual violence and of the availability of state protection from such risk is flawed and irrational;

(3)  That the Board reached unreasonable conclusion on the availability of HIV and other medical treatment to the Applicant in DRC; and

(4)  That the Board’s decision as a whole is additionally flawed as each aspect of the Applicant’s risk profile had been considered in an isolated fashion without a holistic analysis of her overall position being conducted.

18.The Applicant has since also been granted Legal Aid for her present application, and for which she was represented by Mr Timothy Parker at the hearing of her application, and of the proposed grounds for her intended challenge which I now come to consider, starting with her complaint under Ground (1) that the Board erred in its consideration and assessment of the credibility of her claim.

Ground (1): Erroneous Credibility Assessment

19.As noted above, the Board found the Applicant to be an unreliable and evasive witness, and rejected her evidence entirely including that she came from a military family or was closely linked to the former Mobutu regime on the basis essentially of those findings as listed above ([15]).

20.Mr Parker for the Applicant submits that such credibility assessment by the Board was flawed and irrational, that it hanged on speculation and conjecture, unfounded assumptions, so-called “inherent improbability”, and instances of what the Adjudicator took to be “vagueness and inconsistency”, and with adverse credibility findings turned on matters not put to the Applicant at the hearing before the Board.

21.Mr Parker in his skeleton submissions went into details as to how the Board’s erred in its assessment in each of those listed findings, which may be summarized as follows:

(1)  That the Board’s reason for finding the Applicant evasive or ambiguous about her UNHCR’s refugee status on the basis that she did not proceed to appeal against the UNHCR’s decision is flawed as it failed to take into account of her stated explanation of not being able to obtain any information from UNHCR despite repeated requests by her lawyer, and that it was also contradictory;

(2)  That the Board failed to apply high standards of fairness in failing to raise the issue over her father’s identity as General Nzimbi to the Applicant during her appeal hearing or to put it to her in cross-examination before making an adverse credibility finding against her in its decision;

(3)  That the Board’s assessment of the Applicant’s evidence about her relationship with Akwarere as vague despite being put as his wife but unable to tell much about him is flawed in failing to properly recognize that their relationship was forged by the Applicant being kidnapped by Akwarere and imprisoned as his sex slave that it was entirely possible for the Applicant not to be able to know or tell much about Akwarere that it was irrational for the Board to conclude that she was being dishonest in assessing her credibility;

(4)  That similarly the Board’s assessment of the Applicant’s relationship with Sifa and how she joined the trade that led to her flight as vague and inconsistent is based on its own speculation, conjecture, assumption and inherent improbability;

(5)  That there is no substance in the Board’s finding of the Applicant’s account of her theft of cash and diamonds from Akwarere as uncertain and inconsistent that would give rise to doubts about the Applicant’s honesty or reliability; and

(6)  That the Board’s finding of Lambert’s assistance in the Applicant’s escape as implausible given his relationship with Akwarere is pure speculation on the part of the Adjudicator.

22.Mr Parker submits that viewed both individually and as a whole the Board’s reasons for doubting the Applicant’s account do not withstand scrutiny, that the Adjudicator’s analysis hangs on speculation, so-called inherent improbabilities and identification of minor inconsistencies that are of no real significance, and on matters that the Applicant was never properly challenged on.

23.Mr Parker submits that these errors are plainly material, and that the remainder of the Board’s decision either proceeded on the basis that the Applicant’s testimony was false in toto, or else gave only the most superficial treatment to possible risks to the Applicant if her account was true.

24.Given the Applicant’s claim of fear of harm from sources essentially involving the State and/or “State agent or agents”, be it the past or present regime of DRC, where state protection or internal relocation may not be viable, it is inevitable that her case therefore stands or falls on credibility, and in determining whether there are substantial grounds for believing that she would indeed be in danger of such risks if removed to DRC, all relevant considerations should be taken into account, including whether there is a consistent pattern of gross, flagrant or mass violations of human rights in DRC: Section 37ZI(5) of the Ordinance.

25.For establishing the facts of the individual case, UNHCR in its Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, February 2019, set out the following applicable principles and methods at §196:

“It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be an exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

26.As noted above, the Board accepted the Applicant’s case of being a victim of rape in her home country on the basis of the human rights situation in DRC, as it stated at paragraph 107 of the Decision:

“I accept that the Appellant is a national of DRC. I also accept that it is probable that she is a victim of rape on basis of the human rights situation in her home country as revealed in the objective COI. I will consider this issue in favour of her. I further accept that she is infected with HIV and suffers from other chronic illnesses which is well supported by medical evidence.”

27.Hence in its determination of whether there are substantial grounds for believing that the Applicant would be at those risks on the basis of her account of what happened to her that caused her to leave DRC, and even if the Adjudicator were entitled to take into account her behavior in relationship to her UNHCR refugee status as damaging her credibility as provided under Section 37ZD of the Ordinance, the Board would still be required to make proper findings as to the core substance of her claim in accordance with the correct principles, of which I already examined in details earlier in KM & Ors v Torture Claims Appeal Board [2020] 3 HKC, it would be of assistance and worth repeating those which are relevant to the present case.

28.Firstly, in assessing and making credibility finding in claims for refugee protection, the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004, provides that all of the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants: Section 2.1.1 and 2.1.2.

29.In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the to the claimant’s situation and evidence regarding persons who are similarly situated (Section 2.1.2 of Assessment).

30.Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p.41.

31.Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him or her, as provided in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015 at s 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

32.In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behavior and responses on the part of the claimant which run counter to what would be expected; and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant.

33.Such views and approach have been adopted by the Hong Kong Courts, and in ST v Betty Kwan [2014] 4 HKC 419 [2014] 4 HKLRD 277, where the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a non-refoulement protection claim, Cheung CJHC (as he then was) elaborated at §43:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a mean of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

34.Furthermore, it has been recognized that authoritarian or unstable states can act in unpredictable ways, and in a manner that defies apparent logical analysis, as it was stated in RAA v The Secretary of State for the Home Department, Upper Tribunal, PA/07424/2018, 31 May 2019, citing the situation in the case of Abdul Omar Suleyman v The Secretary of State for the Home Department 16242 (1998) at §33:

“It is clear to us that a repressive regime … may well act in ways which defy logical analysis. A person who is genuinely a victim of such a regime may well find that the partial account he is able to give of its activities as they have affected him is not something which will stand up to a strictly logical analysis. The regime may seem to govern by confusion; it may engage in other activities, of which the Appellant knows nothing; it may simply behave in a way which a person sitting in safety in the United Kingdom might regard as almost beyond belief.”

35.In Y v SSHD supra, Keene LJ observed at §25:

“There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’

36.In applying these principles to the present case, it seems to me reasonably arguable that the Board’s assessment of the credibility of the Applicant’s account of events occurred to her which led to her departure of DRC is tainted from the beginning by its misinterpretation of the Applicant’s action regarding her UNHCR refugee status as a behavior damaging her credibility, followed by its failure to raise the issue over her father’s name or identity to the Applicant or to put it to her by cross-examination during the appeal hearing.

37.It also seems to me reasonably arguable that the basis of the Board’s assessment of the Applicant’s evidence about her relationship with Akwarere as vague because she was unable to tell much about him despite being put as his wife is flawed when it was in fact the Applicant’s case that their relationship was that of a kidnapped and imprisoned sex slave and slave owner, and that even if they had been “married” at all, it was not as one would normally conceive as a consensual relationship, and that the assumption that the Applicant should have known more about Akwarere seems to be misconceived, in particularly in the then chaotic and war-torn situations of the DRC and her neighbour Rwanda.

38.The same can also be reasonably arguable about the Board’s doubts over the Applicant’s relationship with Sifa, how she stole the money and gems from Akwarere, and her relationship with Sifa’s husband Vincent and Lambert as to their roles in the Applicant’s flight from Akwarere and the DRC which were never raised by the Adjudicator with the Applicant during the hearing, and that it seems also reasonably arguable to me that the subsequent rejection of their credibility was based much on the Adjudicator’s own assumptions and speculations about what should or should not happen without any evidential basis or sufficient regards for the then armed conflicts and chaotic situations in the DRC.

39.Furthermore, given the considerable difficulties the Applicant faced in her flight from DRC and the subsequent detailed material facts provided in support of her claim to both the Director and the Board, it seems to me also reasonably arguable that the principle of the benefit of the doubt should have been considered by the Board in assessing the credibility of the Applicant’s claim, as noted above in the said UNHCR Handbook, and which further stated as follows:

“202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an “undeserving case”.

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore necessary to give the applicant the benefit of the doubt.”

40.Accordingly, and for the reasons give, I am of the view that this ground of the Applicant is reasonably arguable for her intended challenge.

Ground (2): Irrational Analysis of Sexual Violence Risk and State Protection

41.In its assessment of this claimed risk of the Applicant, the Board did find rape and sexual violence against women prominent in the DRC, especially during the conflicts and in some parts such as eastern Congo where two thirds of women and girls aged from 10 to 30 were victims of sexual violence, as it so stated in its decision:

“150. As mentioned, I do not accept that she was personally at risk because she belonged to the Ngbandi tribe in view of the COI, which suggests that there was no report of mistreatment of the members of the Ngbandi ethnic group by the Congolese authorities.

151. However, I accept that rape and sexual violence against women are prominent in the DRC.

Sexual Violence

152. The Country Report identified the gender-based violence problem as follows:

“Rape and Domestic Violence: The law on sexual violence criminalizes rape, but the offence was not always reported by victims and the law was not always enforced. Rape was common…

Most survivors of rape did not pursue formal legal action due to insufficient resources, lack of confidence in the justice system, family pressure, and fear of subjecting themselves to humiliation, reprisal, or both.”

…

154. In 2014, Freedom from Torture published its report “Rape as Torture in the DRC: Sexual Violence Beyond the Conflict Zone”. With the aid of forensic reports, the report concluded that rape and sexual violence was being used routinely by state officials in Congolese prisons as punishment for politically active women. The survey were based in Kinshasa and sexual violence was employed as a form of torture in detention centres.

155. Congolese women were abused in several locations across the country including the capital Kinshasa and other areas away from the conflict zones. The report continues:

“The adoption of legislative and policy instruments by the DRC authorities to address sexual violence, such as the 2006 law on sexual violence and the related 2009 national strategy and action plan have contributed to strengthen the institutional and legal frameworks in the DRC. Additionally, military prosecutors conducted investigations and courts handed over convictions in a few emblematic cases with the support of the international community. However, numerous obstacles, including lack of resources and corruption have limited the impact of these measures and rape and other forms of sexual violence continue to be committed at alarming levels in the country.”

156. The Country Gender Profile DRC Final Report (March 2017) reported that the number of sex violence cases reduced from 15,000 in 2013 to 7,500 in 2015. It’s account in respect of sexual violence is as follows:

“(2) Violence in conflict. It is said that the conflicts since 1997 caused the increase in sexual violence. During the conflicts it is estimated that 250,000 women suffered sexual assault including rape. In the eastern Congo, two thirds of women and girls aged from 10 to 30 were said to be victims of sexual violence. Even extreme violence such as rape with penetration of sharp objects, amputation of limbs, decapitation and live burials of women were committed. Civil society organizations such as Human Rights Watch, UN agencies such as the Office of the United Nations High Commissioner for Human Rights and the media criticize the use of sexual violence as a weapon of war in the DRC. Sexual exploitation of Congolese women and girls is also an issue in the refugee camps in Burundi and Tanzania. Demands may be made for girls to have sex for daily activities, such as clothes and sanitary goods. It is said that teachers demand sex for grades and money. In the Nyaragusu camp in Tanzania, families give women and girls as a form of payment for debts. To assist victims, it is understood that comprehensive programmes, including medical and psychological care, are potentially effective. Among others, programmes promoting behavioral change, engagement of both men and women in long-term capacity building, and social and economic developmental needs at the community level were found to be crucial to tackle the root causes of local conflicts and violence. There is a concern that aid agencies, which provide support in place of the government, have set up multiple parallel support systems, that rape as a weapon of war has attracted excessive attention, and that other geographical areas and issues, such as murder, torture, and forced labour do not receive sufficient support.”

42.The Board proceeded to find that state protection is available and that the Applicant is not personally at such risk in view of her HIV status and age, as it explained:

“157. The DRC Government has put increasing effort in curbing the said violence and state protection is available. It was reported in the Guardian that commanding officer was convicted and sentenced heavily for his order of mass rape by a Congolese court. It was also reported that another militia leader was convicted of war crimes by the international criminal court for his order of mass murder, rape and abduction. Recently, a rebel leader accused of having orchestrated mass rapes and other atrocities was arrested.

158. I am satisfied that state protection is available and the DRC Government is able to provide fair hearing by an independent, competent and impartial tribunal to its citizens.

159. I recognize that females, especially single women without male support in DRC are vulnerable to rape and sexual violence by armed groups or state security forces or other people. However, I do not find that she is personally at risk of harm, ill-treatment or persecution given her HIV status and age.”

43.Mr Parker submits that the Board however failed to give any reason as to why the Applicant’s age or her HIV status should in any way diminish the risk that she as a single woman without male support would once again be subjected to rape or other sexual violence if returned to the DRC, and that such conclusion of the Board is actually not supported by any evidence.

44.Mr Parker further submits that some of the COI adduced by the Applicant for her appeal before the Board and was cited in her Skeleton Submissions dated 12 August 2019 to the Board show that sexual violence is in fact perpetrated against older women in the DRC, including the UK Home Office’s “Country Policy and Information Note: Democratic Republic of Congo (DRC): Gender Based Violence, Vol 2, September 2018 (HB/26/1034), which stated at 6.2.5:

“A report by Helen Vesperini from the Interpress Service, reported on sexual violence within the conflict areas. The author stated:

‘Women, separated from their husbands by the conflict, end up being the sole breadwinners for their families, while also carrying out other necessary tasks, such as fetching water and firewood, preparing food and raising children.

Many militia fighters prefer soft civilian targets to other armed men. In order to reach safety, women are forced to cover long distances on foot-many whilst pregnant or nursing a baby.

Women and girls are far more likely to suffer sexual violence although there are also cases of male victims. Sexual violence in the region often takes extreme forms and frequently damages both the reproductive organs and the excretory system, leading to urinary and/or faecal incontinence. It is often perpetrated by armed men and many rapes involve numerous assailants with the victims sometimes dying from their injuries. Since some rapists believe that raping an old woman absorbs her wisdom or that the man who rapes a baby purifies himself or rids himself of disease, the victims can range in age from a few months to 80 years old.

In the DRC, if a man knows his wife or partner has been raped he will normally reject her. Her own family will often also reject her. This means that even when treatment is available many rape victims hesitate to access it for fear of becoming social outcasts.”

45.Mr Parker submits that such COI information, having been cited to the Board and which directly contradicted the Board’s conclusion, was never addressed or considered in the decision, and while the Board is not bound by COI evidence, Mr Parker argues that if it is going to reject evidence, it must make clear the basis on which it does so, but in the present case, the decision is silent on such information.

46.As for the Board’s assessment that the Applicant would not be at risk in view of her HIV-positive status, Mr Parker argues that it is difficult to see why it would reduce the risk of her suffering sexual violence as HIV-status is not an outwardly visible or discernable characteristic, and that there is no evidence that such a status would serve as a deterrent to a person prepared to engage in rape or other sexual violence, and given the prevalence of HIV in the DRC generally, the notion that a woman’s HIV status would make any difference to the risk of her being subjected to rape or other sexual violence is an unsubstantiated assumption on the part of the Board.

47.Mr Parker also submits that the Board’s finding on state protection being available to the Applicant is unqualified and unsupported by the adverse information before the Board, of which one just needs to look no further than what the above referred Country Policy and Information Note reported on increasing gender based violence in the DRC and the limitation of state protection available to women and children in the country, especially when State agents were amongst the main perpetrators:

“6.2.6 The UN Secretary General noted in his report of 5 January 2018 for 2017 that ‘Between September and November [2017], the Mission documented 254 victims of conflict-related sexual violence, including 149 women and 66 children. Armed groups were responsible for 75 per cent of such incidents, while State agents were responsible for 25 per cent. The main perpetrators include FARDC and Bana Mura militia in Kasai region (18 per cent of the victims) and FARDC. Sexual violence survivors still encounter limitations in holistic service provision.

6.2.7 The UN Secretary reported in July 2018 that ‘in April and May [2018], MONUSCO documented cases of rape and other forms of conflict-related sexual violence committed against at least 98 women and 18 children, confirming an increasing trend. Rala Mutomboki in South Kivu – the most affected province – are the main perpetrators. State agents were responsible for 42 cases (33 by FARDC soldiers, 7 by Congolese National Police agents and 2 by other state actors)’.

6.2.8 The USSD report stated:

‘The [state security forces] SSF, [rebel and militia groups] RMGs, and civilians perpetrated widespread sexual violence … During the year the United Nations documented 267 adult victims and 171 child victims, including two boys, of sexual violence in conflict. Crimes of sexual violence were sometimes committed as a tactic of war to punish civilians for having perceived allegiances to rival parties or groups. The crimes occurred largely in the conflict zones in North Kivu Province and in the Kasai region, but also throughout the country.”

48.Given such information relied on by the Applicant had been referred to the Board for her appeal, but that the Board appears to have just cited some piecemeal news reports of a few individual cases of arrests and prosecutions to arrive at its conclusion that state protection would be available to the Applicant, I am of the view that it is reasonably arguable that such qualified findings on State protection are irrational.

49.Accordingly, and for all the reasons given, I agree that Ground (2) of the Applicant is reasonably arguable for her intended challenge.

Ground (3): Unreasonable Conclusion on Availability of HIV and Medical Treatment

50.As noted above, the Board in its decision accepted that apart from being HIV-positive, the Applicant also suffers from various health problems, including sarcoma (a cancer), heterozygous HbS disease (sickle cell trait), cervical lymphadenopathy (swollen lymph nodes) and Pulmonary tuberculosis based on the medical evidence provided to the Board.

51.The Board however found from COI that assistance from the DRC Government and NGOs is available to the Applicant and/or that she can also be taken care of by her aunt in the DRC that returning her to her home country under her health condition would not breach Article 3 of the HKBOR (BOR 3) (see [129]-[145] of Decision), as it stated as follows:

“146. Contrary to the Appellant’s assertion that medical healthcare was insufficient in the DRC, the COI showed that the US Government has worked with the DRC Ministry of Health and other NGOs to enhance the healthcare system of the country. It is to be noted that there are non-armed conflict areas in DRC. The DRC Government and other NGOs have also been working closely in assisting HIV patients to improve the family income.

147. Significant advancement of the medical care and support for HIV patients in DRC is seen in recent years. Apart from putting them on treatment, it is clear from the COI that the DRC Government has been taking measures to deal with patients suffering from chronic illnesses.

148. I am satisfied that the Appellant may approach NGOs for her medical, social and moral support as evidenced by the COI. Alternatively, she can be taken care of by her relative in the DRC. Her allegation that her aunt, whom she only stated to have contact in 2015, cannot take care of her is her mere speculation and assertion.

149. The Appellant relied on the comments made by the Medecins sans Frontieres that in fact, PLHIV patients were still subject to charges by public facilities which I have carefully considered. It is not entirely clear from the article that ti applied to all public hospitals. In view of the COI which suggests that assistance from NGOs are available, I conclude that the Appellant is able to access appropriate healthcare in DRC in relation to her health problems including HIV. The Appellant can seek cash grants from, e.g. the British Red Cross, for her urgent needs for food, clothes and shelter.”

52.Mr Parker submits that it cannot be disputed that those medical conditions identified by the Board are serious, and if left untreated would expose the Applicant to a serious, rapid and irreversible decline in her state of health resulting in intense suffering or to a significant reduction in life expectancy, which is self-evidently so in relation to her HIV in combination with her other serious health conditions.

53.As such, Mr Parker submits that the Board ought to have focused on the question of whether there was a real risk the Applicant would not be able to access proper treatment for her serious medical conditions, that it did not properly direct its mind on this question, and that its analysis of the evidence relating to the availability of medical treatment is superficial, piecemeal and based on speculation, and that it also failed to consider her personal circumstances which would heighten the risk of her not able to afford or otherwise obtain medical treatment in the DRC.

54.In scrutinizing the determination of a claim under BOR 3 which prohibits in absolute terms torture or inhuman or degrading treatment or punishment, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the personal situation of the applicant, so as to determine whether there is a real risk of his removal would be contrary to the standards of BOR 3 in view of his particular situation such as his medical condition.

55.In D. v United Kingdom, 146/1996/767/964, Council of Europe: European Court of Human Rights, 2 May 1997, where the applicant from St Kitts, an island in the West Indies, arrived in UK and was arrested at the airport for drugs trafficking offence, and while serving his prison sentence he was diagnosed as HIV-positive and suffering from AIDS, and after all his legal challenge of the removal order made against him had failed, the case was referred to the European Court of Human Rights which examined the application of the principle of Article 3 of the Convention to the applicant’s removal, and of which it stated as follows:

“46. The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge.

47. However, in exercising their right to expel such aliens Contracting States must have regard to Article 3 of the Convention (art. 3), which enshrines one of the fundamental values of democratic societies. It is precisely for this reason that the Court has repeatedly stressed in its line of authorities involving extradition, expulsion or deportation of individuals to third countries that Article 3 (art 3) prohibits in absolute terms torture or inhuman or degrading treatment or punishment and that its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question (see, most recently, the Ahmed v. Austria judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, para. 38; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1853, paras. 73-74).

48. The Court observes that the above principle is applicable to the applicant’s removal under the Immigration Act 1971. Regardless of whether or not he ever entered the United Kingdom in the technical sense (see paragraph 25 above) it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention (art. 1) since 21 January 1993. It is for the respondent State therefore to secure to the applicant the rights guaranteed under Article 3 (art. 3) irrespective of the gravity of the offence which he committed.

49. It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or form those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection (see, for example, the Ahmed judgment, loc. Cit., p. 2207, para. 44).

Aside from these situations and given the fundamental importance of Article 3 (art. 3) in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article (art. 3) in other contexts which might arise. It is not therefore prevented from scrutinizing an applicant’s claim under Article 3 (art. 3) where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article (art. 3). To limit the application of Article 3 (art. 3) in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant’s personal situation in the expelling State.

50. Against this background the Court will determine whether there is a real risk that the applicant’s removal would be contrary to the standards of Article 3 (art. 3) in view of his present medical condition. In so doing the Court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent information on his state of health (see the Ahmed judgment, loc. Cit., p. 2207, para. 43).”

56.The Court then proceeded to assess such risk in the light of the applicant’s most recent information on his state of health, and made the following findings:

“51. The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern (see paragraph 21 above). The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organization. He has been counselled on how to approach death and has formed bonds with his carers (see paragraph 19 above).

52. The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts (see paragraph 32 above). While he may have a cousin in St Kitts (see paragraph 18 above), no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients (see paragraph 17 above).

53. In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 (art. 3).”

57.That was of course a case with very exceptional circumstances with compelling humanitarian considerations at stake which concerned Article 3 of the Convention, as emphasized by the Court at the concluding part of its decision ([54]), while in the present case before me, there is no evidence to suggest that the Applicant’s medical conditions were anywhere near as serious at the time of her appeal to the Board, but given the fact that she does have a whole series of health issues for which she has been receiving regular attentions or treatments in Hong Kong for years, as evidenced by the numerous medical documents adduced to the Board (HB/11/247-285), it is however not clear from those COI referred to by the Board that the same service for all her conditions would be available to the Applicant in the DRC or to which she be able to access, or how the lack of any one or more of such treatments would affect or impact on her cancer or HIV status, of which the same UNAIDS report referred to by the Board ([134] of Decision) revealed that 42% of women with HIV are not receiving treatment in the DRC, while only 39% of those suffering from both HIV and tuberculosis were receiving treatment for both conditions. Neither of which were referred to by the Board in its decision.

58.Furthermore, for the Board to suggest that the Applicant may approach NGOs for her medical, social and moral support, and to be taken care of by her relative such as her aunt whom she only made contact in 2015, it seems reasonably arguable that the Board failed to take account or consider sufficiently of the Applicant’s personal circumstances such as her age, her lack of male and family support or of employment history, her absence from the country for years, and the lack of information about her aunt or her ability, position or willingness to take care of the Applicant in her condition before arriving at the conclusion that it would not be a violation of BOR 3 in the implementation of the decision to remove her to the DRC.

59.For the reasons given, I am of the view that Ground (3) is also reasonably arguable for the Applicant’s intended challenge.

Ground (4): Failure to perform Holistic Analysis of the Claim

60.In this ground Mr Parker argues that the Board considered the Applicant’s many risk factors separately but not the cumulative weight and effect of these various factors on her claim, and of which the Board should have proceeded to perform a holistic analysis of all the circumstances of her case before arriving at its conclusion.

61.Mr Parker submits that the effect of a combination of risk factors was addressed in the COI made available to the Board including the following, but which the Board failed to make a holistic evaluation:

(1)  The risk of sexual violence is affected by location and socio-economic circumstances, and single women without family or social networks are particularly vulnerable: “Country Policy and Information Note: Democratic Republic of Congo (DRC): Gender Based Violence”, UK Home Office, Vol. 2, 2 September 2018;

(2)  Stigmatization and financial cost constitute barriers to accessing treatment for HIV: “Left Behind by the HIV Response”, Medicins Sans Frontieres, December 2017;

(3)  By virtue of the Applicant’s gender, she is in a disadvantaged position in terms of the resources that she might be able to receive for treating her HIV.

62.The need to conduct such an evaluation was emphasized by the European Court of Human Rights in NA v United Kingdom (2009) 48 EHRR 15 at para. 130:

“ … the Court emphasizes that the assessment of whether there is a real risk must be made on the basis of all relevant factors which may increase the risk of ill-treatment. In its view, due regard should also be given to the possibility that a number of individual factors may not, when considered separately, constitute a real risk; but when taken cumulatively and when considered in a situation of general violence and heightened security, the same factors may give rise to a real risk. Both the need to consider all relevant factors cumulatively and the need to give appropriate weight to the general situation in the country of destination derive from the obligation to consider all the relevant circumstances of the case.”

63.This requirement was also mentioned in the said UNHCR Handbook at §201:

“Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” (see paragraph 53 above).”

64.This approach has since been adopted by the Hong Kong Courts, as Lam VP (as he then was) stated in MD Nazir Ahmed Sarkar v TACB [2021] 5 HKC 237 at §50:

“Since the assessment of risk of harm is a exercise having regard to all relevant circumstances up to the time of assessment, we cannot understand why those events were not relevant. The harm and sufferings occasioned to the applicant’s family members must have an impact on the applicant since such harm and sufferings were inflicted on account of coercion upon the applicant. The intensity and seriousness of harm had increased tremendously as compared with the incidents encountered by the applicant which were alluded to by the adjudicator.”

65.Given the many interrelated and intersecting facets of the Applicant’s risk profile, and in the context of the country conditions in the DRC as submitted by Mr Parker, I agree that this ground of the Applicant is also reasonably arguable for her intended challenge.

Conclusion

66.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision based on these grounds is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

67.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis of her stated grounds, and direct that she shall file and issue an originating summons within 14 days of this decision, and to serve a copy together with all the relevant documents on the Board as respondent and the Director as interested party, with the question of costs be in the cause, and that her own costs to be taxed on Legal Aid Regulations.

Dated the 14^th day of November 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