Mahamoud Osman Mahamed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 774/2019

[2023] HKCFI 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 774 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 oral submissions by counsel for the Applicant in open court;

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

1.  Leave to the applicant to amended Form 86 and to file further evidence by way of affirmation in terms of the ex parte summons dated 22 November 2022;

2.  Leave for the applicant to apply for judicial review of the Board’s Decision and the applicant must issue the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC; and

3.  Costs of this application be in the cause.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was represented by Benjamin Chan, Counsel on the instructions of Messrs. Daly & Associates.

3.By ex parte summons filed on 22 November 2022, the applicant applied for leave to amend Form 86 and to file further affirmation in support of the amended Form 86. Leave will be formally given below.

The applicant

4.The applicant is a national of Somalia. He came to Hong Kong on 5 February 2012 and intercepted at the airport on 7 February 2012. He was refused permission to land. He made a non-refoulement claim by way of a written representation dated 28 March 2014.

5.In summary, the applicant claims to be a member of a minority clan in Somalia, namely the Gaboye, an occupational sub-clan, seen as ritually unclean. He claims that he has suffered discrimination because of his membership of this minority Clan and persecution because his father botched an operation on the child of a local elder to treat diphtheria. The applicant claims to have suffered persecution and torture at the hands of the elder because his father was accused of causing the death of the elder’s child. See paragraph 4 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that his enemies did not have real intention to seriously harm him or kill him upon his return to Somalia [17]; that state protection was available to him [18]; and that internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board fixed a date for the hearing of the appeal.

9.By a letter dated 8 November 2018, the applicant requested the Board to make a decision on his matter without an oral hearing.

10.By a letter dated 26 November 2018, the Board responded to the applicant’s letter and advised him:

“… …

The Board invited you to a hearing because it was not satisfied that a favourable decision could be made in your favour on the basis of the material before it and the nature of the issues raised, the high standards of fairness required in non-refoulement protection cases warranted inviting you to a hearing.

The hearing is an important part of the appeal process and gives you the opportunity to provide further evidence in response to the Board’s questioning and to address any concerns held by the Board in relation to your claims. If you request the Board to proceed to a decision without hearing, this would mean that the Board would determine your matter on the written materials before it and would leave any questions that the Board may have about your claims unanswered….”

11.By a letter dated 11 December 2018, the legal representative of the applicant told the Board:

“… …

By conferences dated 27 November 2018 and 6 December 2018, the claimant confirmed that he did not wish to attend the hearing scheduled on 12 February 2019 after legal advice have been sought and he was fully aware of the possible legal consequences of his case being proceeded without a hearing. …”

12.Upon the reasons given by the applicant’s legal representative, the Board proceeded to assess the appeal on paper. In the end, the Board, by the Board’s Decision, dismissed his appeal and confirmed the Director’s Decision. The reasons given by the Board for the Board’s Decision are these:

“13. The Appellant’s account of his experiences in Somalia is incoherent and not consistent with the generally known facts about Somalia and the COI presented by both the Appellant and the Respondent. In particular, the Appellant’s claim rests on an alleged botched operation carried by his father on a child of a local leader for diphtheria. However, as the Director has pointed out, the treatment for diphtheria is not surgery but antibiotics. The Appellant has provided no evidence the traditional doctors in Somalia or members of the Gaboye undertake more than circumcision as basic surgery or that people use them to treat illnesses like diphtheria. There is evidence that modern medicine is available in Somalia. For those reasons, the Board attaches no credence at all to this element of the Appellant’s claim.

15. The appellant asserts that he is from the Gaboye minority group in Mogadishu. The Appellant has provided no evidence that he is from the Gaboye and as he requested his matter to be decided on the papers it has not been possible for the Board to test this or enquire further. He has provided some information about this occupational sub-clan in his claim but the information is generic and not detailed and there is no analysis of his claim from an expert to provide support for his claim to be from a minority clan.

16. In light of the incoherence of his claim about his father’s activities as a surgeon treating diphtheria, the Board is unwilling to accept at face value that the Appellant is from the Gaboye minority without having his evidence tested or supported.

18. On this basis of those findings, the Board finds that the Appellant has not established that he is from a minority clan in Somalia, nor that minority clan membership establishes a well-founded fear of persecution.”

13.The Board then continued to assess each of the risks of the applicant’s claim. It found that there is no real risk to the applicant’s right to life and no real prospect that he would face cruel, inhuman or degrading treatment or punishment at the hands of the Somali authorities [27]. The evidence does not establish that the applicant’s persecutors were public officials or acting with official acquiescence nor did his treatment arise to the level of torture within the definition [30]. The applicant does not claim that a consistent pattern of gross, flagrant or mass violations of human rights exits in Somalia and he has not adduced any evidence in support of that contention and the COI does not support that claim [31]. For those reasons, the Board confirmed the Director’s Decision.

Ground for leave to apply for judicial review

14.In the amended Form 86, the applicant set out 4 grounds in support of his application.

(1)  The Board was procedurally unfair to reject the applicant’s minority clan membership by reason of the lack of expert evidence in support without raising this issue for consideration and response by the applicant and his legal presentative.

(2)  The Board erred in law and was procedurally unfair by disbelieving the entire account of the applicant’s experiences based on a single aspect (namely the usual course of treatment of diphtheria in Somali) therein.

(3)  The Board was procedurally unfair to the applicant or failed to meet the high standards of [sic] unfairness by cherry-picking or having overlooked the relevant parts of the country guidance before it.

(4)  The Board failed to properly assess whether the applicant had a well-founded fear of being persecuted for any of the grounds enumerated under the Refugee Convention.

DISCUSSION

15.Those grounds above hinge upon the Board’s findings that the applicant failed to establish that he is from a minority clan in Somalia, nor that minority clan membership establishes a well-founded fear of persecution and that his father had botched an operation on the child of a local elder to treat diphtheria. These are the core issues for the applicant’s application. The Board found against the applicant because it did not accept his evidence without the applicant appearing before it for cross-examination and further enquiries. The applicant’s argument is that although the Board had warned him that his evidence on the papers did not support his case, it had failed to bring the applicant’s or his legal representative’s attention to the core issues mention above, especially where the Director had accepted that the applicant is a member of the minority clan in Somalia[1], a conclusion which the Board had overturned. Since the applicant elected not to attend the hearing before the Board, he was deprived of the opportunity of answering the Board’s queries.

16.These issues will then turn on to what extent will the Board be required to warn or advise the applicant for not giving evidence at the hearing in order to meet the requirements of higher standards of fairness as determined by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2002) HKCFA 187:

“45. … The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. …

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. …” emphasis added.

17.It is not easy to set down the guideline for the Board to draw attention to matters that require clarification or elaboration, especially when the applicant refuses to give evidence.

18.Section 37AZ of the Ordinance provides that the applicant has a duty to provide all information relevant to the claim:

37ZA.Duties of claimant

(1)  It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a)  provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts; …

37ZD.Credibility of claimant

(1)  In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

a.  any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

i.  conceal information;

(2)  Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

a.  failure, without reasonable excuse, to comply with any requirement, procedure or condition (including any time limit)—

(i)  prescribed by this Part; or

(ii)  required or specified by any person under this Part.

(3)  This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.

It is clear that the above statutory provisions do not encourage the applicants not to cooperate with the Director or the Board in making enquiries into the facts of their cases in support of their applications for non-refoulement claims. One may say that the claimants’ right of silence before the Director or the Board is limited under the Ordinance.

19.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

20.The Court of Appeal in Re Masurd MD [2021] HKCA 1449, Hon G Lam JA and Coleman J, 7 October 2021, where the applicant refused to answer questions from the Board, relying upon the ruling of the House of Lords in Browne v Dunn (1894) 6 R 67 (HL) (28 Nov 1893), held:

“where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. …”

21.In another case, the Court of Appeal in Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration [2022] HKCA 836, Chu JA and Poon J, 13 June 2022, held:

“24. The Court of Appeal in Re Masud MD (supra) was concerned of this lack of ‘warning’ to the applicant because the rule in Browne v Dunn (supra) requires that if a cross-examiner intends to challenge a witness’ evidence on a particular point as being untruth, questions must be put to him to give notice that his credibility on that evidence would be impeached. However, the Court of Appeal also pointed out that there is no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached. What fairness demands will depend on the facts of each case.

25. The Court of Appeal in Re Masud MD did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps, lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide an opportunity to the applicant to respond if he or she wishes to.”

22.It should be noted that in Re Masud MD and Buniag Renante Lulu, the Court of Appeal did not make reference to section 37ZD of the Ordinance, which does not require the Director or the Board to notify the applicant specific issues on which enquiries or cross-examination of the applicant’s evidence is required. It begs the question if the applicant is not aware of the issues, how can he or she decide whether the attendance is necessary? Where, as in this case as the applicant was legally represented, the Board has specifically notified the applicant that he was required to attend the hearing already fixed for him to give further information or answer questions, which will affect the sustainability of his claim, is it sufficient for the purpose under section 37ZD of the Ordinance for the Board to make a decision averse to the applicant’s claim without specifying the issues on which the Board had doubt? This issue may have to be further canvassed by the Court of Appeal in due course when other cases are brought up to it.

23.In Muhammad Tariq Tahir v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCFI 2218, 21 July 2022, DHCJ Lung, where at the hearing before the Board, the applicant refused to answer the Board’s questions. The Board had warned the applicant that without clarifications from him, his appeal would be very unlikely to succeed. Again, the applicant refused to give evidence. As a result, the Board considered his appeal on the available documents only. The Board considered that the applicant had not fulfilled his duty of joint endeavor and rejected his evidence before the Director. It dismissed his appeal. The Court refused to grant leave to the applicant to apply for judicial review of the Board’s Decision and held:

“18. The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim: section 37ZA (1)(a)[2]. As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. He had been told the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.”

24.It is clear from the above authorities that the ultimate purpose of the exercise is to achieve fairness within the context of advanced standards of fairness for the applicant and what fairness demands will depend on the facts of each case. If the inconsistencies, gaps or lack of particulars are crucial to the core issues of the applicant’s claim, and such issues are clearly known to the Board, the burden on the Board to draw the applicant’s or his legal representative to such issues will be heavier. On the other hand, if there is evidence to show that the applicant is aware of the issues on which the Board intends to obtain further information or make cross-examination on the available evidence, the Board will have less burden to make specific reference to those issues. Where the applicant does not wish to answer questions put to him before the Board, it will be convenient for the applicant to ask what questions the Board intends to put to him and state his reason for not answering the proposed questions. Alternatively, it is convenient for the Board to point out the areas, on which clarifications are necessary.

25.In this case, apart from the fact that the Board had doubts about the core issues of the applicant’s claim, the Board further seeks to overturn the Director’s Decision on the claimant’s membership of the minority clan, an issue which is not challenged by the applicant in the notice of appeal. The applicant or his legal representative naturally did not expect the Board would, on its own motion, revise the evidence and make a dramatically different decision on the applicant’s membership of the minority clan. It is quite clear that the Board was aware of the core issues of the claim as in its letter to the applicant, it drew to the applicant’s attention that it was not satisfied that a favourable decision could be made in his favour on the basis of the material before it. It is clear that it was also aware of the nature of the issues raised.

26.It is under these special circumstances that I find that the warnings given by the Board to the applicant and his legal representative for not attending the hearing is not sufficient within the context of the advanced standards of fairness, as the applicant did not expect the Board to challenge the Director’s finding on his minority clan membership issue, which was not raised in the notice of appeal.

27.The notice of appeal before the Board challenged the issues of state protection and internal relocation found by the Director. However, it seems that the Board had not made any finding on these issues. It might be because the Board had found that as the applicant’s facts were rejected, there would be no factual basis in support of his claim, thus the other issues did not arise for his determination.

28.I find that there is a realistic chance of success in the applicant’s intended application for leave for judicial review of the Board’s Decision.

CONCLUSION

29.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision.

DISPOSITION

30.I shall make an order in terms as follows:

(1)  leave to the applicant to amended Form 86 and to file further evidence by way of affirmation in terms of the ex parte summons dated 22 November 2022;

(2)  leave for the applicant to apply for judicial review of the Board’s Decision and the applicant must issue the originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC; and

(3)  costs of this application be in the cause.

Dated the 14^th day of March 2023

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