Jiagge Fafa Joel David v. Torture Claims Appeal Board

HCAL 1752/2021

[2023] HKCFI 1857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1752 OF 2021

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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 July 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Togolese Republic (“Togo”) of West Africa who arrived in Hong Kong on 19 March 2011 as a visitor with permission to remain as such up to 2 April 2011 when he did not depart and instead overstayed, and on 11 April 2011 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Togo he would be harmed or killed by his girlfriend’s siblings said to be related to the President of Togo for refusing to carry out certain illegal political activities for them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lome, Togo. After leaving school he assisted his father in his business in Be’Chateau before returning to his home district to run his own garments business.

3.In 2009 he started dating his girlfriend Cynthia said to be of the Gnassingbe Family and the step-sister of the Togo President Faure Gnassingbe, and was introduced to her siblings including her brothers Una and Lobo who were members of the ruling political party Rally of the Togolese People (“RTP”).

4.One day in January 2011 Una and Lobo asked the Applicant to join RTP and to carry out certain political activities to sabotage their opposition party, but as the Applicant considered such activities illegal, he declined their request.

5.One day several weeks later in February 2011, they brought the Applicant to a quiet place where Una shot a man dead in front of the Applicant, and warned him that no one had ever lived after refusing his demands, and told the Applicant to reconsider his request.     

6.After the incident the Applicant became so fearful for his life that he fled from his home to hide in a friend’s place in Kegue before moving on to Kodjoviakope, and on 3 March 2011 he departed Togo for China, and from there he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 23 July 2015 and a Notice of Further Decision dated 14 June 2017 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 his 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”).

8.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s siblings upon his return to Togo as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in the absence of any official involvement or of the President that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Togo with a large population of 7.3 million people spread across a vast territory of more than 56,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 20 November 2020 before the Board with his lawyer from DLS during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 23 July 2021 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.In its decision the Board found no reliable evidence of the Applicant’s claim of having a relationship with any member of the Gnassingbe Family or of the President of Togo which were contradicted and/or not supported by the relevant COI that it was not accepted that he had had any relationship with the President’s step sister or that her siblings had asked him to engage in any political activities for RTP or that he had been threatened by any of them as alleged that caused him to flee from his country to come to Hong Kong, and that it concluded that his claims of events that occurred in Togo prior to his departure in 2011 lacked credibility in their entirety that he failed to establish that he would face any risk of harm or ill-treatment from anyone upon his return to Togo that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.      

11.On 24 December 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)    Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)    Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)     Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)    Procedural unfairness in that the board failed to meet the greater care and duty owed to a self-represented claimant;

(5)    That the Applicant was not given a fair opportunity to keep forward his submissions in an oral hearing nor was he invited to submit written submissions during his appeal hearing before the Board;

(6)    That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculation that it is safe for him to return to his home country.

12.By then the Applicant was however out of time with his application, as 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 unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the 3 month-period for him to file his Form 86 fell on 23 October 2021, the Applicant was therefore 2 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of 2 months must be considered as substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, nor did he request any oral hearing of his application.  As such and as the record shows that the decision was sent on the same day to him via his lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.    

15.As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just vague and bare assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter it discretion or that the Adjudicator had acted in a procedurally unfair manner, or which source of news or COI relied on by the Board were not officially recognized or were simply hearsay or outdated, while it is clearly factually incorrect for him to complain of not being given any opportunity to put forward his submissions at his oral hearing when the record shows that he was then represented by his lawyer from DLS and that he was able to give evidence and to answer questions raised of his claim and with proper representations and submission made on his behalf by his lawyer for his appeal during his oral hearing before the Board. As such and as none of his proposed grounds were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 72 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made on his behalf by his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.                 

18.Having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on the Board to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

19.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he has been granted a visa by the Immigration Department to allow him to stay Hong Kong but without providing any further details or documentary evidence in support of his assertion. 

20.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 14^th day of July 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