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

HCAL 146/2022

[2023] HKCFI 2841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 146 of 2022

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;

Order by Deputy High Court Judge To:

1.  Leave to file the notice of application for leave to apply for Judicial Review (“Form 86”) out of time be granted;

2.  Leave to amend Form 86 be granted;

3.  Leave to apply for Judicial Review granted; and

4.  There be no order as to costs, except that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Observations for the Applicant:

Introduction

1.This is the hearing of the Applicant’s application by Form 86 filed on 17 February 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 October 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 November 2013 (the “Director’s First Decision”) and his Notice of Decision dated 5 October 2018 (the “Director’s Second Decision”) refusing his application for non-refoulement protection under all applicable grounds under the Unified Screening Mechanism (the “USM”).

2.The leave application was filed nineteen days out of time. The delay is not very substantial in the context of a three-month period for making the application. Substantial merits of the leave application are the determinant factor in determining whether to grant extension of time for filing the leave application. Hence, the issue of delay will be addressed together with the question of merits. Leave is also granted for the Applicant to amend the Form 86 to particularize his three grounds of application.

3.The Applicant is a Cameroon national. He arrived in Hong Kong on 12 April 2006 and overstayed since 26 April 2006. He married an Indonesia woman (the “wife”) in Hong Kong who gave birth to two sons and a daughter. His wife’s and her two sons’ non-refoulement claims were finally determined and rejected. Their youngest daughter who was born on 17 September 2013 has not yet lodged a claim.

4.The Applicant raised a torture claim under the Immigration Ordinance (the “Torture Claim”) by written representation on 23 December 2006. He completed a Torture Claim Form (“TCF”) on 13 June 2013. His Torture Claim was rejected by the Director’s First Decision. He appealed the decision. His appeal was adjourned sine die on 10 April 2014 pending the outcome of his claim for protection under the remaining applicable grounds under the USM which he filed on 10 April 2014. He completed a Supplementary Claim Form (“SCF”) on 12 June 2018. Subsequently, his non-refoulement claim under the three remaining applicable grounds under the USM, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3] was rejected by the Director’s Second Decision. His appeal against the Director’s Second Decision was determined together with his appeal against the Director’s First Decision. By its Decision, the Board dismissed both of his appeals. He now seeks leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

5.The thrust of the Applicant’s case as asserted in his TCF[4] and NCF[5] is his fear of torture by the police, the Gendarmerie (military police) and prison officers (collectively the “security forces”) in order to punish him for his attack on the family of a member of the security forces (“Noah”) and/or his involvement in and/or due to his and his family’s previous political activities and suspected ongoing political engagement as a supporter and/or member of the Union of the Peoples of Cameroon (“UPC”), which is an opposition political party.

6.The Applicant was born in Douala, now aged 50. He completed formal education. He used to work in the family garage and as an assistant truck driver for his brother’s friend.

7.His father was a member of UPC and had been detained for two years because of his affiliation with the UPC. His brother was married and lived apart from the Applicant’s family. His brother and sister were also members of UPC. The Applicant became a supporter of UPC when he was 15 or 16 years old. He attended UPC events at which he distributed UPC materials and tried to persuade people to support the party. His brother discouraged him from becoming involved with the party because of attacks against UPC members.

8.Since mid-2000, Noah, whom the Applicant believes is a police superintendent from the Central Police Station in Duola, frequently visited the garage to talk to his brother. One day (probably in April 2001)[6], Noah came to the garage and had a meeting with the Applicant’s brother (the “first visit”). The Applicant was told by his brother that Noah had tried to persuade his brother to quit UPC to join the Cameroon People’s Democratic Movement (“CPDM”) but his brother refused.

9.About two to three weeks after the first visit, Noah came to the garage and went to the office to talk to the Applicant’s brother (the “second visit”). Then Noah emerged from the office screaming at his brother that his brother had ‘asked for it’ and had been ‘warned’. The Applicant was later told by his brother that “pressure was going up and we had to be cautious.”

10.Since about a week later (probably middle of May 2001)⁶, the Applicant’s brother never turned up for work. The Applicant’s sister-in-law told him that on the previous evening four men in civilian clothing had taken his brother from his house and his brother had not returned since.

11.Two days after his brother’s disappearance, the Applicant filed a report at the Central Police Station in Douala and at four other police stations about the disappearance. He believed the police had not investigated his complaint.

12.Two or three weeks later, the Applicant went to the police station where Noah worked. He met Noah and explained the purpose of his visit (the “first confrontation”). Noah glared at him and told him to forget about his brother. Noah refused to provide any information to the Applicant about his brother and ordered him to leave in a hostile manner.

13.Two days later, the Applicant happened to see Noah outside a restaurant and approached him (the “second confrontation”). Noah grabbed the Applicant by the shoulder and asked if the Applicant knew who he was and told the Applicant that he had the power to decide who lives and dies in Douala. He then told the Applicant to go and never come back.

14.A week later, the Applicant went to see Noah at the Gendarmerie in Bonanjo (the “third confrontation”). Noah yelled at him and said if the Applicant kept following him his life would be like that of his brother. Then, Noah ordered his subordinates to “take care” of the Applicant. The Applicant was blindfolded. His left leg was placed on a table with an iron bar was placed across his tibia. The iron bar was then struck repeatedly. He was hit on the stomach with sticks which had nails or other sharp objects embedded in them. His left index finger was deliberately cut with a machete. He was beaten for 30 to 45 minutes. As he was pushed out of the Gendarmerie, Noah told the Applicant that he was giving the Applicant another chance and see how he could come next time.

15.The Applicant took a motorcycle taxi to his friend’s home. He could not afford medical treatment in the hospital. His friend treated him with antibiotics. He became convinced that Noah was responsible for his brother’s disappearance and probably death. He did not report the assault to the police because he thought it would be useless.

16.In between the confrontations, the Applicant printed tracts and organised protest marches with the youths of UPC and other volunteers regularly once a week. He was arrested by the police twice. On one occasion, he was released shortly after the arrest. On another occasion, he was detained for three or four days. The Applicant now accepts that these facts are irrelevant to his claim.

17.The Applicant stayed in his friend’s home from 2001 to 2005. His parents died one after the other in May and June 2001. He worked as a part time truck driver’s assistant. During those five years, he hoped Noah would forget about him. In 2005, he began plotting his revenge.

18.The Applicant kept surveillance of Noah in April 2005. On 2 April 2006, he laid ambush for Noah and deliberately crash a truck against Noah’s car as it emerged from his home. He saw Noah’s driver and three children were injured inside the car, but Noah was not in the car. He threw a lot of UPC tracts and a banner containing the words “in memory of (the name of his brother)” into the car to ensure that Noah knew the crash had not been an accident. Then he drove away.

19.The Applicant left Cameroon on 3 April 2006 and stayed in Lagos, Nigeria until 6 April 2006 when he left for Hong Kong. While in Lagos, his sister told him that police had arrested most of his friends.

20.While in Hong Kong, the Applicant met a businesswoman from Cameroon who was a neighbour and friend of his sister. She told him that his sister had been apprehended by the police, detained, tortured, and died afterwards. He then called his brother-in-law who confirmed that his sister was beaten, taken back home and to the hospital.

21.At the hearing, the Applicant produced some letters from his friends and a great cousin about the current situation in Cameroon. His great cousin mentioned about the Applicant being discriminated as a ‘Bamileke’ ethnic group. He also produced a copy of a death certificate relating to his sister. But the certificate does not contain any information about the cause of death.

The finding of the Board

22.The Board considered that the core of the Applicant’s claim (including the reason for his brother’s disappearance, his sister’s involvement with the UPC, the cause of his sister’s demise and evidence on which his claim for non-refoulement protection is based) is based on hearsay and, in some instances, second-hand hearsay, not within his personal experience or knowledge. It attached little weight to that part of his evidence which is not supported by other credible evidence: see Paragraphs 177-179 of the Decision.

23.The Board found the Applicant’s evidence vague and generalised. It identified many material discrepancies and inconsistencies in the accounts of his claimed experience in Cameroon and held that many assertions of fact were advanced by the Applicant for the first time during the hearing. It considered the Applicant’s explanation for his failure to mention them at the earlier stage of the screening process unconvincing and unreasonable. The Board concluded that the cumulative effect of the inconsistencies and contradictions in the Applicant’s evidence seriously undermined his general credibility to the extent that it was impossible to attach any weight to his evidence.

24.The Board found the Applicant’s story about ramming a truck into Noah’s car “fanciful, inherently unrealistic and lacking in credibility”. It did not accept that Noah actually existed or that his men had assaulted the Applicant in the way the Applicant described. In conclusion, the Board was satisfied that the Applicant had fabricated the whole of the factual basis of his case in the hope of advancing his claim for non-refoulement protection. As for the Applicant’s claim of discrimination on account of his Bamileke ethnicity, the Board noted that his evidence in this regard was vague and lacking in specific proof and there was no evidence that he was ever subject to serious discrimination or ill-treatment as a Bamileke. Accordingly, it found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s two Notices. His claim was rejected solely on credibility.

Grounds of judicial review

25.The Applicant advanced the following three grounds of judicial review:

(1)  Misdirection in law on the approach to the Applicant’s evidence and credibility;

(2)  the Board’s failure to investigate the relevant country of origin information (“COI”): and

(3)  the Board’s failure to properly assess Persecution Risk/Torture Risk.

26.Grounds (1) and (2) are directed at the Board’s finding of the Applicant’s credibility and the Board’s treatment of hearsay evidence. They are inter-related may be conveniently dealt with together.

27.I do not consider it necessary to deal with Ground (3) because the basis of the Board’s Decision is that the Applicant’s claim is a fictitious claim and that there is no factual basis to support non-refoulement protection under any of the four applicable grounds. The Board had not made any assessment of the Applicant’s entitlement to protection on the basis of the claim as he asserted. If the Applicant succeeds on Ground (1) or (2) in challenging the Board’s finding on his credibility and/or the credibility of his claim, his entitlement to protection would have to be properly assessed by the Board on the facts it found. If he fails, he would have no factual basis to support any of his claim under any of the four applicable grounds, not just persecution risk or torture risk grounds.

Legal principles applicable to hearsay and assessment of credibility

28.Before dealing with the Applicant’s grounds of review, it would be helpful to outline some well settled legal principles relating to the approach to hearsay evidence and assessment of credibility of witness in non-refoulement cases. The evidential difficulties faced by a genuine non-refoulement claimant need not be over emphasised. Hearsay is a notably common difficulty for someone fleeing his home country hurriedly for his life. Hence, the courts accept that while a claimant bears the burden of proof, he only needs to prove his case to a very low standard. In considering the question of evidence and credibility of a claimant, the courts in Hong Kong took the approach set out generally in the Note on Burden and Standard of Proof in Refugee Claims[7] which is summarised as follows:

(1)  When assessing the overall credibility, factors such as reasonableness of the facts alleged, the consistency and coherence of the story, any corroborative evidence in support of statements, consistency with common knowledge or general known facts and the known situation in the country of origin (“country of origin information” or “COI”);

(2)  Credibility is established when the claimant has presented a claim that is capable of being believed; and

(3)  There is no necessity to prove all the facts to such a standard to fully convince the decision maker that all factual assertions are true – where there is an element of doubt on part of the story, the claimant should be given the benefit of the doubt.

Thus, when a decision-maker approaches a piece of hearsay evidence, he may not simply dismiss it by giving it little or no weight simply because it is hearsay or multiple or second hand hearsay. It is also well established law that to require corroboration in asylum cases is an error of law: see SS (Iran) v Secretary of State for the Home Department[8]. The decision maker should assess its credibility by testing it against the factors mentioned in sub-paragraph (1) above.

29.Furthermore, deciding a claim solely on credibility should be regarded as a means of last resort: see ST v Betty Kwan[9]. The authorities have shown that in such a case the decision maker must warn himself of the need for caution before making any adverse finding on credibility. He must identify which facts are material to the claim.

30.Even if there are some facts that are incredible or inherently implausible, it is necessary to give the claimant the benefit of doubt when it comes to assessing the credibility of his statements especially when the material account was in principle consistent throughout the proceedings: see R.C. v Sweden[10] and JL v Torture Claims Appeal Board[11]. He must not focus solely on exaggerations or evidence unfavourable to the claimant. He must do more than simply search through the evidence looking for contradictions or elements that lack credibility to build a case against the claimant and ignore other aspects of the claim which are credible. He must take a balanced approach: see Assessment of Credibility in Claims for Refugee Protection[12].

31.The examination of each material fact must not be done in isolation. The decision maker is required to take everything material into account. His sources of information will frequently go well beyond the testimony of the claimant and include relevant COI: see Karanakaran v Secretary of State for the Home Department[13].

32.Whether an event is plausible or not, the decision maker must be careful not to impose his own cultural specific concept of what a reasonable man would have done: see Y v Secretary of State for the Home Department[14] and K v Torture Claims Appeal Board / Non-refoulement Claims Petition Office[15]ST v Betty Kwan[16].

33.A decision maker should not reject an account simply for want of corroboration: see SS (Iran) v Secretary of State for the Home Department[17] and K v Torture Claims Appeal Board / Non-refoulement Claims Petition Office[18].

34.Even when a decision maker concludes that a claimant’s account is rejected, he must identify what the lie is and what weight to give to that lie. If the entire account is wholly incredible so that the decision maker is unable to believe anything that the claimant has said, he must still nonetheless consider whether there is any objective evidence about the conditions in the relevant country which would place a person such as the claimant at risk: see MA v Secretary of State for the Home Department[19].

Evidence misidentified as hearsay

35.The Board identified as hearsay the following evidence:

(1)  Noah’s relation with the Applicant’s brother[20];

(2)  that Noah was a police officer²⁰;

(3)  evidence relating to Noah[21];

(4)  the Applicant’s brother’s disappearance[22]; and

(5)  that Noah was responsible for the disappearance[23].

36.There is indeed no direct evidence that Noah was a police superintendent or officer of the Gendarmerie. Whether Noah is member of the civil police or military police is not important in the context of this claim. The essence of the claim, properly understood, is that Noah was a member of the security forces in the position to harm or ill-treat the Applicant. It is the Applicant’s evidence that he saw Noah visiting the garage a number of times, including in particular two occasions when Noah went into his brother’s office; that he saw Noah in the police station during the first confrontation and had conversation with him; and that during the third confrontation, Noah exercised his authority to cause his subordinates to “take care of” the Applicant inside the police station. The evidence that Noah was inside the police station and in the position to cause his subordinates to “take care of” the Applicant is sufficient evidence from which the inference that he was a senior member of the security forces could be reasonably drawn (whether he was a superintendent or of a lower rank is unimportant). Putting aside the question of credibility, this evidence is not hearsay.

37.Though the Applicant’s evidence that his brother was taken away by four men in plainclothes is hearsay, his evidence that his brother never thereafter turned up for work in the garage is not. It is also corroborating evidence which lends weight to his sister-in-law’s hearsay evidence. The sister-in-law’s hearsay evidence is also consistent with arbitrary arrests by members of the security forces in plainclothes and forced disappearance as reported in the COI before the Board, which the Board failed to take into account.

38.To categorise all these evidence in one broad brush as hearsay is clearly wrong in law. It is another error of law for the Board to hence give little weight to the evidence because of lack of corroboration: see K and Torture Claims Appeal Board/Non-refoulement Petition Office[24] and SS (Iran) v Secretary of State for the Home Department[25]. In fact, hearsay statement, if believed to be credible, is sufficient to establish the truth of the facts therein for the purpose of non-refoulement claims because it is an exercise of evaluation to signposts to a conclusion on issues. I repeat my observation that the sister-in-law’s hearsay evidence is not uncorroborated. It is corroborated by the Applicant’s evidence that his brother never turned up for work in the garage thereafter and by the COI.

39.What particularly troubles the Court is that these allegations form the core of the Applicant’s claim, as the Board acknowledged. By wrongly categorising them as hearsay and attaching little weight to them for that reason and in overlooking the existence of corroborating evidence means the Board made an error of law in its finding of fact relating the core of the Applicant’s claim. It is, therefore, at least arguable that as a result the core of the Applicant’s claim has not been given the consideration which it deserves.

Assessment of Applicant’s credibility

40.The Board went on to find the Applicant incredible because his evidence is vague and generalised in nature[26]; there are many material discrepancies and inconsistencies12; it is inherently improbable[27]; and that many assertions were advanced by the Applicant for the first time13. It found that the cumulative effect of the inconsistencies and contradictions seriously undermined the Applicant’s credibility and that he is not a truthful or reliable witness. It came to the conclusion that the Applicant fabricated the whole of the factual basis of his claim in the hope of advancing his claim for non-refoulement protection[28]. Mr Deng submits that what the Board apparently did was to go through each event recounted by the Applicant and built a case of credibility against him. He submits that this approach is wrong in law.

41.The Board rejected or gave no weight to the following evidence:

(1)  that the Applicant was detained and assaulted at Noah’s instruction[29];

(2)  the car ramming incident which the Board considered is fanciful, inherently unrealistic and lacking in credibility[30]; and

(3)  the ill-treatment on the Applicant’s sister and her death which the Board considered as hearsay and not supported by credible evidence[31].

42.In respect of the Applicant’s assault and detention, the Board was not persuaded that the Applicant had been detained and assaulted or at all. Despite the general criticism about vagueness, incredibility and lack of corroboration in the Applicant’s evidence which formed the basis for its assessment of the Applicant’s credibility, it gave no particular reasons for this finding.

43.In my view, this finding does not stand well in the face of the Applicant’s evidence of his injuries suffered during his detention which was accepted as proven before the Director[32]. The Director accepted that the ill-treatment was caused by Noah’s subordinates and was clearly in the wrong but attributed it to Noah’s subordinates’ personal misconduct. Evidence of the injuries before the Director includes scars on the Applicant’s finger, stomach and shin[33]. Since the appeal before the Board is a hearing de novo, the Board is not bound by the Director’s finding. However, at the hearing before the Board, the Applicant volunteered twice to show the scars on his finger and tibia (presumably meaning his shin). The offer was not taken up by the Board and no reason was given.

44.The evidence relating to the assault presented to the Board took up three pages of the transcript[34]. No finding was made by the Board as to whether the scars existed; and if they did whether they were caused by Noah’s subordinates. The overall tenor of the Board’s finding is that the Applicant was incredible, Noah was a fictitious figure that never existed and the Applicant was never detained and assaulted.

45.Unlike in the usual adversarial proceedings, the decision maker in a non-refoulement proceeding is under a duty of joint endeavour to establish the claimant’s claim. Having been alerted by the Applicant of the existence of scars which evidence the assault, detention and Noah’s existence, the Board was under a duty of joint endeavour make the best use of that evidence to establish the claimant’s case. It should have at least conducted a visual examination instead of turning a blind eye to the possible existence of the scars which could boost or corroborate the Applicant’s case before reaching the conclusion that the case is a concoction. If the Board accepted the scars existed, it should have considered how they could support the Applicant’s case or should have given an explanation, as did the Director, why the scars were irrelevant for the claim.

46.Furthermore, there were at least five COI before the Board about abuse and impunity for members of the security forces. In Cameroon: Fragile State?[35], it is reported that “abuse is frequently committed to extract a bribe from the victim or the family, and impunity for members of the security forces is high.” This COI is particularly relevant as it referred to an incident in Douala in 2001. It is an error of law for a decision maker to make finding on credibility in isolation from any conclusions about the prevalence in the home country of the type of conduct which the claimant claims to fear: see R v IAT ex parte Sardar Ahmed[36] and 2020 Home Office Guidance on Assessing Credibility and Refugee Status. This COI had not been referred to by the Board. It appears that this aspect of the Applicant’s evidence was considered in isolation without taking into account the country situation in Douala.

47.The assault and detention go to the core of the Applicant’s claim. They have an important impact on the finding of the Applicant’s credibility and the other aspects of his case, such as the car ramming incident. The way this particular piece of evidence was dealt with was unsatisfactory. It is at least arguable that such finding is erroneous in law and amounted a breach of the high standard of fairness required of the Board (not a ground advanced by the Applicant).

48.In respect of the car ramming incident, the Board rejected it as fanciful, inherently unrealistic but gave no reasons for its finding. Mr Deng submits that in the absence of reasons, it would seem that the Board imported its own cultural context into its assessment of plausibility, which is wrong as a matter of law. The decision to ram the truck into Noah’s car is a personal one. The reason for the decision is known only to the Applicant himself. The Board could only assess this subjective decision by placing itself in the position of the claimant in his factual circumstances under the contemporaneous situation of his country and then apply objective reasoning. A reasonable person would not make such a choice, because it is criminal and may render himself liable to criminal sanction. In a country such as Cameroon at the material time, it may subject one’s own family members to risk of revenge by people in authority and who are in the position to abuse their authority. On the other hand, in reality and by nature, the reckless acts recklessly, especially given what the Applicant had gone through: the assault, detention and loss of his elder brother. There was COI before the Board showing on the one hand that abuse is frequently committed by members of the security forces to extract bribe from victims or their families and impunity for members of the security forces is high; and on the other that lingering resentments over abuse of family members, experience of torture and desires for revenge. However, the Board’s finding which is based solely on its negative finding of the Applicant’s general credibility apparently without regard to these considerations and the COI is, arguably, the result of an error of law.

49.In respect of the arrest, detention, questioning, ill-treatment and subsequent death of Applicant’s sister, the Board found the Applicant’s evidence is made up of hearsay and second-hand hearsay which is not supported by any other credible evidence[37]. It also considered the Applicant’s responses to the Board’s questions were verbose and evasive which undermined his general credibility[38]. In the light of its negative findings on the Applicant’s general credibility, it attached little weight to the Applicant’s evidence and found it was fabricated by the Applicant[39].

50.The proscribed harm feared by the Applicant is the torture and even killing by the security forces in order to punish him for his attack on the family of a police officer. The Applicant’s fear is supported by the arrest, ill-treatment and death of his sister. There were COIs before the Board about abuse and impunity for the security forces and extra-judicial killing. These COIs are capable of corroborating the Applicant’s hearsay evidence and enhancing his credibility. The Board should have tested the Applicant’s evidence against the COI which it apparently had not. As mentioned above[40], it is an error of law for a decision maker to make finding on credibility in isolation from any conclusions about the prevalence in the home country of the type of conduct which the claimant claims to fear. Arguably, the Board made an error of law in rejecting the Applicant’s evidence about the ill-treatment and death of his sister for want of corroboration and in reaching conclusions on his credibility in isolation without considering COI available before the Board.

51.All in all, this Court accepts that by wrongly categorising certain evidence as uncorroborated hearsay and attaching little weight to them, in rejecting certain hearsay evidence for want of corroboration, in failing to take into account possible available medical evidence and in making finding on credibility without regard to the prevailing situation in the country as reflected in the COI, arguably the Board has misdirected itself on the law when making its finding of fact. These finding of facts go to the core of the Applicant’s claim as acknowledged by the Board. It is, therefore, at least arguable that as a result the core of the Applicant’s claim has not been given proper consideration and the Decision is the result of an error of law.

Conclusion

52.Accordingly, the Applicant is granted leave to file the Application for Leave to Apply for Judicial Review (Form 86) out of time; leave to amend the Form 86; and leave to apply for judicial review on Grounds (1) and (2). There be no order as to costs, except that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Dated 3^rd of November 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