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

HCAL 489/2022

[2024] HKCFI 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 489 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:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 17 March 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) refusing to re-open her non-refoulement claim pursuant to Section 37ZG(5) of the Immigration Ordinance.

2.The Applicant is a Togolese, now aged 39.  She arrived Hong Kong on 23 May 2013.  She had two children born in 2007 (Child-1) and 2011 (Child-2) with her partner in Togo called “Kodjo” who had arrived Hong Kong before she did.  Their two children arrived Hong Kong separately after the Applicant.  In July 2014, the Applicant gave birth to her third child with Kodjo (Child-3).  A month later, Kodjo registered his marriage with a Hong Kong resident.  Then, he fathered three more children with the Applicant in 2016, 2018 and 2021.  Kodjo and the six children are not parties to the present proceedings.  Their non-refoulement claims are being dealt with separately. 

The distant background: the issue of the Director’s Notice of Deemed Withdrawal

3.On 28 June 2013, the Applicant lodged a torture claim by way of two written significations (the “Torture Claim”).  Her significations were written in French with the assistance of her solicitor, Messrs Daly & Associates.  At a briefing session on 22 November 2013, the Director served blank Torture Claim Forms (“TCF”) on the Applicant, Child-1 and Kodjo requesting them to complete and return them within 28 days in connection with their Torture Claims.  They accepted the publicly-funded legal assistance provided by the Duty Lawyer Service (“DLS”).  The session was conducted in French with Kodjo interpreting for the Applicant in Ewe. 

4.In the months that followed the DLS and the Director discussed about provision of Ewe interpretation.  The TCF were never returned to the Director.  Following the implementation of the Unified Screening Mechanism (“USM”), the Applicant, Child-1 and Kodjo were required to complete and return the TCF and Supplementary Claim Form (“SCF”).  At some point, Child-2 arrived in Hong Kong.   

5.Since engaging the services of the DLS, the Applicant and her two children made over 40 extensions of time for returning their completed claim forms on the ground that no Ewe interpreter was available in Hong Kong.  The Director suggested to the DLS to engage a French interpreter to assist the Applicant in giving instructions as she was able to communicate in French at the airport and had written two significations in French to the Director.  On 18 June 2014, the DLS refused the Director’s suggestion on the ground that the Applicant’s ability to communicate in French or English is of basic level and not sufficient for the purpose of giving instructions.  The DLS informed the Director that an Ewe interpreter was required for taking instructions and that the Applicant also refused to engage remote Ewe interpretation services from Ghana which is commercially available because she had security concerns about disclosing confidential and sensitive information to an unknown party in Togo or a Togolese in a third country.  Then, since registering his marriage with a Hong Kong resident in August 2014, Kodjo refused to act as the Applicant’s and their first two children’s interpreter.

6.At a briefing session on 13 May 2015, two years after lodging her claim, the Applicant raised for the first time a specific request for an Ewe interpreter in Apla dialect.  Up till then, the Applicant, through the DLS, and the Director were discussing about interpretation in common Ewe.

7.In the meantime, the Director managed to recruit an Ewe speaking interpreter from Ghana and scheduled a briefing session with the Applicant in respect of Child-3 on 11 April 2016.  Both Kodjo and the Applicant did not turn up.

8.On 25 May 2016, the DLS informed the Director that the Applicant could only speak and understand Ewe Apla and that the interpretation by the Ewe interpreter from Ghana previously provided by the Director was not intelligible to the Applicant.  The DLS further indicated that the Applicant came from the Maritime Region in the south of Togo and Ewe Apla was the Ewe dialect used and spoken by people in the Maritime Region.  As demonstrated below[1], this assertion is contrary available authoritative and credible country of origin information (“COI”).

9.On 15 June 2016, in response to the DLS’s request, the Director granted the Applicant extension of time to 7 July 2016 to return the completed claim forms and reminded her of the consequence of deemed withdrawal upon default.  He proposed the DLS to consider enlisting Kodjo’s assistance in completing the claim forms.  He also drew the DLS’s attention to the COI that Ewe is a language widely and commonly used in the Maritime and Plateaux regions and in Maritime region/southern part of Togo where the Applicant came from.  On 7 July 2016, the DLS turned down the Director’s proposal to enlist Kodjo’s assistance because of possible conflict of interest since the Applicant’s and Kodjo’s claims were separate from each other.

10.On 8 December 2016, the Applicant attended a briefing session scheduled for Child-3.  After making some attempts, she indicated that she could not communicate with the Ewe interpreter arranged for the briefing.

11.In 2018 and 2019, the Director made various invitations to Kodjo through the DLS to act as interpreter for the Applicant and their children.  The invitations were all declined by Kodjo without giving any reasons.  On 12 November 2019, the DLS informed the Director that they had contacted Kodjo many times and he unequivocally refused to assist as interpreter in the briefing sessions.  On 5 December 2019, the DLS informed the Director that they were unable to contact the Applicant and ceased to further act for her, Child-1 and Child-2.

12.On 14 January 2020, the Applicant with Kodjo attended the Immigration Department.  An immigration officer informed her of the availability of the services of the DLS and gave her a letter containing the offer, but she refused to accept the letter or to sign acknowledgement of its receipt.  The letter was then sent to the Applicant by mail to her reported address. The Director also referred her case to the DLS for assistance.  On 12 March 2020, the DLS informed the Director that they had made various attempts to arrange conference with the Applicant and her first two children but was met with no success.   The DLS indicated that they were unable to provide any legal assistance to them.  The Director then advised the Applicant to obtain suitable interpretation service from Kodjo or Ewe interpreters available in Hong Kong.

13.On 20 October 2020, the Director wrote a detailed letter to the Applicant, setting out the chronology of events and explained to her that the screening process is a joint endeavour exercise in which she was also required to put in her efforts to provide information to establish her claim.  He expressed again that objective information showed Ewe was a language widely used in Togo in the area where she came from, that the different dialects of Ewe were mutually intelligible to any Ewe speaker and her assertion that she could only understand the Ewe Apla dialect spoken by persons from a particular region in Togo was not acceptable.  The Director warned her against “persistent and incomprehensible rejection of the interpreter” assigned to help her.  He said that he saw no good reason why she could not either request Kodjo to interpret for her given their close relationship, or to process her claim with the aid of the Ewe interpreters available in Hong Kong.  The Director expressly required the Applicant to return the completed claim forms on or before 3 November 2020.  An immigration officer also attempted to contact the Applicant and Kodjo by phone but was met with no success. 

14.The Applicant did not return the completed claim forms and did not apply for extension of time.  On 10 November 2020, the Director issued a Notice of Deemed Withdrawal of Non-refoulement Claim on Failure to Return Completed Non-refoulement Claim Form (“Notice of Deemed Withdrawal”) to the Applicant informing her that her non-refoulement claim was deemed withdrawn on 4 November 2020 for her failing to return her completed claim forms.   

The immediate background: the Director’s decision to refuse to reopen

15.On 9 March 2021, the Director received a letter in English written by the Applicant requesting to re-open her non-refoulement claim on the ground that “her life will be in danger in her home country”.  By two letters in English with Ewe translation, the Director requested her to provide her reasons for failing to return her completed claim forms with supporting evidence.  The Applicant responded by a letter dated 22 April 2021 saying that she could not find an Ewe Apla interpreter and repeated she need an Ewe Apla interpreter only and not any Ewe interpreter.

16.By a letter dated 28 April 2021 in English with Ewe translation, the Director informed the Applicant that an interview had been scheduled for her on 21 May 2021.  He reiterated the common usage of Ewe in Togo.  The Applicant did not attend the interview.  In reply to the Director’s request for explanation for her absence, she said she had not received the Director’s letter dated 28 April 2021.

17.The Director re-scheduled another interview with the Applicant on 2 July 2021.  By a letter dated 24 June 2021, the Director advised her to proceed with her claim with the interpretation assistance of Kodjo or the Ewe interpreters provided by the Hong Kong government.  On the same day, an immigration officer called the Applicant.  Kodjo answered the telephone call and agreed to pass the message about the meeting to the Applicant.  He said he would consider attending the meeting with her but would not want to be her interpreter as he was not a qualified interpreter.   

18.The Applicant attended the interview on 2 July 2021.  Kodjo did not accompany her.  The two Ewe interpreters available explained to the Applicant about the contents of the Director’s letter dated 24 June 2021, including that according to COI the different dialects of Ewe are mutually intelligible to an Ewe speaker. However, the Applicant just indicated using hand gestures that she could not communicate with either of the two Ewe interpreters. 

19.After evaluating the surrounding circumstances, the Director issued a Notice of Decision (Request for re-opening of Non-refoulement Claim Deemed Withdrawn on Failure to Return Completed Non-refoulement Claim form) dated 6 August 2021 (the “Refusal Notice”), refusing her request to re-open her non-refoulement claim.

20.The Applicant appealed against the Refusal Notice. By its Decision dated 17 March 2022, the Board dismissed her appeal and confirmed the decision of the Director in the Refusal Notice.  The Applicant now seeks leave to judicially review that Decision.

The Decision of the Director

21.The Director seemingly accepted in favour of the Applicant that there are dialectal variations between Ewe Apla spoken by the Applicant and the common Ewe dialects spoken by the Ewe interpreters.  But in the light of the COI, the Director did not accept that the Applicant was unable to communicate with the Ewe interpreters.  Despite the Applicant claimed that Kodjo who had previously interpreted for her had refused to assist, the Director noted that he was still having a close relationship with the Applicant and her children including answering the Applicant’s telephone calls.  The Director was of the opinion that if the Applicant had real and serious intention to submit the claim form in the past seven years (ie since 2014), she should have actively contacted the Immigration Department and taken their advice to proceed her claim with the interpretation provided by Kodjo or the Ewe interpreters arranged by the department.  He was therefore not satisfied that the Applicant had provided sufficient evidence to satisfy him that she had not been able to return the completed claim forms due to circumstances beyond her control.

The Applicant’s grounds of appeal

22.The Applicant’s sole ground of appeal as stated in her Notice of Appeal is that the Immigration Department did not provide her with interpretation in Ewe Apla, but only provided her with interpretation in common Ewe which she could not understand.  She also explained that Kodjo who had previously assisted her with interpretation could not assist her any more as he is suffering from trauma and psychiatric problems. She added that while she was hospitalised in Togo she saw news in French about her and her daughter’s case and pictures showing she was bleeding. She could not understand the news but had submitted it to the Director. This statement is only part of her claim for non-refoulement protection and not a ground of appeal. Her stance is that the Director was under an absolute duty to provide her with Ewe Apla interpretation. 

The Decision of the Board

23.The Decision of the Board was made without an oral hearing, pursuant to Section 12 of Schedule 1A of the Immigration Ordinance and Paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.

24.The Board recited the factual background as summarised in the above sections.  It referred to the applicable version of section 37ZG of the Immigration Ordinance and to the Court of Appeal decision in Musafaqoh[2] holding that a claimant applying to reopen her claim “must provide sufficient evidence in writing to satisfy the Director that due to circumstances beyond her control she had not been able to return a completed form as required.”  It then posed the following two questions:

(1)   Is it reasonably probable that it was for circumstances beyond her control that the Applicant could not provide the Director with her completed claim forms through lack of language assistance? and

(2)   Has the Applicant been hampered from providing her account for lack of an Ewe Apla (sometimes referred to as “Ewe Aplah”) interpreter?

Obviously, the purpose of the second question is to identify the difficulties which prevented the Applicant from completing the claim forms and the surrounding circumstances; while the purpose of the first question is to determine whether such difficulties are insurmountable when tested against the surrounding circumstances as to amount to circumstances beyond the Applicant’s control, ie that there was nothing she could do to overcome the difficulties. 

25.Like the Director, the Board accepted there are different dialects in the Ewe language and that Ewe Apla interpreters are not available in Hong Kong. Seemingly, it also accepted there is an Apla dialect in the Ewe language.  It accepted that the Applicant is communicable in Ewe Apla dialect.  It also found she had a certain level of competency in the French language, which is the official language of her country, as indicated by her choice to communicate in French with the immigration officers upon her arrival at the airport on 23 May 2013 and particularly the two significations written in French, albeit with the assistance of her solicitors.  The Board obviously accepted that her competency in French is minimal as it referred to the level of competency sufficient for giving instructions to her lawyers for writing her submissions only.  On that occasion, the Applicant was able to give a short account of her contended fear. The Board noted in particular that the Applicant claimed to be a shop assistant in Togo. 

26.The Board accepted on the basis of authoritative and credible COI that there are different dialects in the Ewe language, but most of the dialect speakers are able to understand each other as the variation between dialects were mostly a matter of phonology.  According to the COI, the Ewe language had undergone a process of standardisation in the 19^th century, and the standardised Ewe language is widely used in schools, markets, churches, radio, television broadcasts, mass media and publications about children rearing in Togo, including in the southern part of Togo where the Applicant came from.  As primary education was almost compulsory in Togo at the time the Applicant was supposed to be receiving her education, the Board found the Applicant is not likely to be illiterate[3]. 

27.Under those circumstances, given her age, the Applicant must have been benefited by the standardisation of the Ewe language.  The Board therefore found it difficult to understand why the Applicant as a shop assistant and mother who has raised two children in her country is not able to understand the common Ewe language widely used in schools, churches, televisions and daily life by the Togolese population living in the Maritime region in the southern part of Togo where she came from.  Hence, it doubted if the Applicant could not understand the common Ewe language spoken by the Ewe interpreters arranged for her.  But it did not go that far as to hold that she was pretending that she did not understand.

28.Then, the Board considered how the Applicant managed her daily affairs among non-Ewe or non-Ewe Apla speakers during her eight years’ stay in Hong Kong since 2013.  The Board noted that she was able to attend her ante-natal and post-natal care and the delivery process in the hospital in ways or in a language through an interpreter to the Chinese/English speaking medical team attending her.  She was able to conduct her daily affairs without Ewe Apla interpretation.  Obviously, she was able to do so with her body language or that the circumstances were such that the circumstances spoke for themselves or with assistance from Kodjo and their children.  The Board came to the conclusion that the objective circumstances indicate that she was not wholly uncommunicable in ways other than in the Ewe Apla dialect.  Again, the Board did not go that far as to hold she was able to communicate about her case without assistance.

29.The Board took note that the Applicant had some assistance from Kodjo and her two elder children.  Child-1 and Child-2 were born in 2007 and 2011 and were aged 14 and 11 respectively as at the time of issue of the Refusal Notice.  They were brought up by the Applicant in Togo and obviously were communicable with her in Ewe Apla.  They are receiving education in Hong Kong and should be communicable in English. Child-1, in particular, should have completed primary school and should be receiving junior high school education at the time of the issue of the Refusal Notice.  He should be competent to assist the Applicant to overcome her language barrier.

30.The Board took into account the distant background leading to the issue of the Notice of Deemed Withdrawal and the immediate background leading to the Director’s decision to refuse to reopen the application as summarised above.  It noted, in particular, that Ewe interpreters had been made available to the Applicant on the various attempted briefing sessions between 2014 and 2020.  When remote Ewe interpretation from Ghana became available, the Applicant refused to use the services out of her security concerns.  After that, she raised for the first time after two years the specific request for Ewe Apla interpretation.  The Board noted the immigration officer’s record of the briefing session on 2 July 2021, which was held for the purpose of determining the Applicant’s application to reopen her claim.  The Applicant did not speak much during the session but only used hand gestures to suggest she did not understand the Ewe interpreters[4].  Such conduct is inconsistent with the COI that despite the dialectal variation, different dialect Ewe speakers are able to understand each other.  The Board took such conduct as evidence of an absence of intention to use her best endeavour to communicate with the immigration officers through the Ewe interpreters.

31.Having regard to her language limitation and having considered the above objective circumstances, the Board considered there were four options open to the Applicant to enable her to complete and return her claim forms:

(a)   complete her claim forms in French;

(b)   enlist Kodjo’s assistance to complete her claim forms;

(c)   complete the claim forms in a language which she is most comfortable with and leave it to Director to secure a translation; and

(d)   enlist Child-1’s and/or Child-2’s assistance in completing the claim forms.

32.The Board held, as a matter of law, that the Applicant was under a duty to use her best endeavour to complete her claim forms.  In the light of the above factual circumstances, it found (1) she had not made a good effort to try to communicate with the Ewe interpreters, be there any dialectal difference between Ewe Apla and common Ewe used by the interpreters [5]; and (2) she has failed to use her best endeavour to complete the claim forms[6].  Had she exercised her best endeavour to communicate with the Ewe interpreters, she could, either by herself or with the help of the DLS, complete the claim forms.  She had on numerous occasions refused assistance by the DLS and reacted negatively leading to the DLS’s refusal to act for her twice.  Hence, the Board was not satisfied that the Applicant was prevented by circumstances beyond her control which rendered it impossible for her to complete her claim form.

The proceedings before the Court and grounds for judicial review

33.Before the hearing commenced, the Ewe interpreter was given time to have a conversation with the Applicant so that they may understand the dialect with which they could communicate effectively.  From what the Court could observe, the Applicant did not speak with the interpreter in Ewe but only spoke with him in English.  That was also what the interpreter reported.  The Court asked the Applicant to speak to the interpreter in Ewe Apla.  She spoke very briefly.  The interpreter reported that though he could speak most of the Ewe dialects, the dialect spoken by the Applicant was not known to him or was not an Ewe dialect.  He said, in line with the COI, that despite dialectal differences, the different dialects are intelligible to an Ewe speaker.  He had tried to open a conversation with the Applicant by asking her in common Ewe what is equivalent to “how are you” in English, but the Applicant did not respond.  The proceeding was then conducted in English.  The interpreter was asked to explain the Board’s Decision, particularly its finding and reasons for the Decision from paragraphs 54 to 60.  The interpreter confirmed that he had and that the Applicant said she understood the Decision which had been previously explained to her.  

The legal principles applicable to judicial review

34.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7]. 

Grounds for judicial review

35.The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affidavit, she only annexed a copy of the Decision.   In her letter to the Court dated 20 September 2023, she complained that her claim was “closed” by the Immigration Department and her appeal was rejected by the Board due to lack of Ewe Apla interpreter.  In the light of the distant and immediate background set out above, that allegation is not quite true.  But the Court took note that unavailability of Ewe Apla translation is the core problem in the processing of her claim.

36.After the principles in the above section had been explained to her, the Applicant said she had started to learn English from a church since August 2021 and would be able to complete the claim forms in English now.  She informed the Immigration Department of her willingness to do so last month, but has not completed the claim forms.  When asked to give a brief account of her claim, she only repeated no more than what she had said in her written significations mentioned in paragraph 4 above.  These are post-Decision events, which have no bearing on the Decision.  She did not advance any other grounds of review.  Absent specific grounds or grounds with sufficient particulars, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Determination without an oral hearing

37.Though the Applicant raised no complaint about the way the Decision was made, the propriety of the making of the Decision without a hearing is considered in the Court’s overall scrutiny of the Decision.  The Applicant accepted and knew that no Ewe interpreter competent or communicable in the Apla dialect was available in Hong Kong.  It is also her case that Kodjo who used to interpret for her will no longer assist her.  Yet, it remained to be her unequivocal stance that she would only communicate in Ewe Apla dialect.  Under such circumstances, the Board considered it could not possibly hold an oral hearing through a French or a common Ewe interpreter nor could such a hearing advance her case as she maintained she could not communicate with or through such an interpreter. 

38.Both the Director and the Board relied on documents and facts known to the Applicant.  The Applicant’s failure to return the completed claim forms was not in dispute. The facts leading to the issue of the Notice of Deemed Withdrawal were not in dispute and supported by incontrovertible documents.  The Applicant had the benefits of an interview on 2 July 2021.  She did not speak much during the interview but only used hand gestures to suggest she did not understand the Ewe dialect spoken by the interpreter.  If that remains to be her stance, another oral hearing before the Board would not advance her case at all.  It never was the Applicant’s grounds in the Notice of Appeal that she disputed the facts relied on by the Director or had other explanations for her failure to offer.  Having regard to the nature of the decision making process in question, the procedural history of the matter, that an oral hearing had been held before the immigration officer, the Applicant’s conduct at that hearing, the interest at stake, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations, the Court agrees with the Board that in the circumstances a just determination without compromising the Board’s high standard of fairness could be made without an oral hearing and without compromising the high standard of fairness.

The Director’s duty to provide interpretation service v Applicant’s duty to use her best endeavour to communicate

39.The legal issue raised by this leave application is whether a claimant, who is unfamiliar with the official language of the host country, is under a legal duty to use her best endeavour to communicate with the decision maker when the host country could not provide interpretation service in a language intelligible to the claimant.  The Applicant’s stance as suggested by her Notice of Appeal is that it is the duty of the Director to provide an Ewe Apla interpreter for her.  She is under no duty to do anything but to wait for availability of an Ewe Apla interpreter.  Impliedly, she is relieved or excused of the duty to complete her claim forms if the Director could not provide an Ewe Apla interpreter for her or if she could not find one for herself or if no Ewe Apla interpreter is available in Hong Kong.  The Board’s stance is that the Applicant has to use her best endeavour to communicate with the immigration officers with whatever assistance she may reasonably expect from the Director in the circumstances, including assistance from Ewe interpreters competent in the common Ewe language; otherwise, she would have to use her best endeavour to communicate with her own resources.   

40.The high standard of fairness requires the host country to provide interpretation service to a claimant who is unfamiliar with the official or common languages in the host country to assist him to present his claim for protection.  However, the world is far from perfect.  There may be circumstances, as in the present case, that no suitable interpretation service could be arranged for some reasons.  There are two parties to a claim, the claimant and the decision maker.  If the objective circumstances are such that despite all reasonable efforts no suitable interpretation service could be arranged, whether by the decision maker or the claimant, would the law cast any duty on the claimant to do anything to enable his claim to be processed? 

41.The starting point of this analysis is who bears the burden of proof in a claim for non-refoulement protection.  It is the claimant who seeks protection.  Under the ordinary legal principles, the burden of proof is on the claimant to establish, albeit on a very low standard, that he shall be afforded protection on any applicable grounds under the USM.  The starting point is for the claimant to substantiate his claim by putting forward his grounds and his case for protection to the decision maker.  Under section 37Y of the Immigration Ordinance, a claimant must complete the claim form upon the written request by an immigration officer, stating the grounds of the claim and the facts supporting the claim within 28 days.  It is therefore the Applicant’s indisputable duty to complete the form and her implied duty to use her best endeavour to do so.  While the Director is under the duty of joint endeavour to help the Applicant to prove her claim, it is common ground that there is no Ewe Apla interpreter available in Hong Kong.  What the Director could do was to provide the nearest alternative such as a common Ewe interpreter to assist her to better express herself and such other assistance as may reasonably be required, such as the professional services of the DLS so that with their legal expertise and adequate prompting she may present a more comprehensive and formidable case.  There is no dispute that the Director had discharged all those obligations.  In the circumstances, the Applicant has to do something to discharge her duty to substantiate her claim. She may not sit back and wait for an Ewe Apla interpreter to fall from the sky.  She has to use her best endeavour to discharge her duty and in the first place by communicating with the immigration officers through the Ewe interpreters available or with her own resources.  Her duty to exercise her best endeavour is also reflected in section 37ZG(2) which imposes on her the burden of satisfying the immigration that her failure to return the completed claim form was due to circumstances beyond her control.  In finding that the Applicant was under a duty to use her best endeavour to communicate with the Ewe interpreters provided to her, the Board committed no error of law.

The Applicant’s failure to use her best endeavour to communicate or to complete the claim form

42.What the Applicant has to do to discharge that duty depends on the factual circumstances of the case. It is a question of fact for the Board.  Certainly, that duty is not discharged by casting it back on the Director and blaming the Director for failing to provide her with an Ewe Apla interpreter when it is not in dispute that such an interpreter is not available in Hong Kong.

43.The distant and immediate background indicate that it was the Applicant’s very firm stance that it was the Director’s duty to find her an Ewe Alpa interpreter, and failing which she has no liability for failing to complete the claim form.  She has to do no more but to wait indefinitely for the availability of an Ewe Apla interpreter.  It was also her very firm stance that she was absolutely uncommunicable in any language other than Ewe Apla.  She just indicated by hand gestures that she did not understand the Ewe interpreters made available to her on the various sessions and made no attempt at all to communicate with them. Her conduct is contrary to the COI showing that despite there are different dialects under the Ewe language, the different dialects are intelligible to all the Ewe speakers as the variations were mostly a matter of phonology.  Her conduct did not stand well against the COI that given her age, the social and educational conditions in Togo, the standardisation and development of the Ewe language at her time and the common use of Ewe in daily life in the part of Togo where she came from.  Her conduct makes it open to the Board to doubt if she could not understand the common Ewe language spoken by the Ewe interpreters arranged for her and hence came to the conclusion that she had not use her best endeavour to communicate with the interpreters or to complete the claim form. 

44.Eleven years have lapsed since the Applicant’s arrival in Hong Kong, she has not yet completed her claim forms.  Though she now claims she has learned English since 2021 and could complete the form in English, she never ever attempted to make good her default by actually completing it and sending it to the Director.  That also reflects an absence of the will to perform her obligation.   She was dragging her feet.

The options suggested by the Board

45.The Board did not stop there after finding the Applicant had failed to use her best endeavour to communicate with the Ewe interpreters provided for her.  It went further to consider if there were other alternatives open to her so as to determine if her failure was due to circumstances beyond her control.  The Board suggested there were four options which she could have pursued to complete her claim forms and held her inaction is evidence that her failure to complete the claim forms was not due to circumstances beyond her control.

46.First, the Board suggested that the Applicant could have completed her claim forms in French. It recalled the Applicant’s choice to communicate with the immigration officers at the airport in French, her two submissions written in French with the assistance of her solicitors in June 2013 and the Director’s suggestion in 2014 to the DLS then representing her to complete the claim form in French.  The Applicant’s solicitors replied that the Applicant’s French capability was at a very basic level which might not be sufficient for the purpose of completing her claim forms with sufficient particulars.  That reply was made at a time when it was assumed that Ewe interpreter would be available and the problem about Ewe Apla interpretation has not even arisen.  Now that it is accepted that no Ewe Apla interpretation is available, the Applicant has to do something more.  With willingness on her part, time, patience and suitable prompting by an experienced solicitor in refugee law, she could have adequately developed her account in her written significations and completed the claim forms in French.  However, this suggestion had not been renewed in the Director’s letter dated 20 October 2020 before the issue of the Notice of Deemed Withdrawal.  It may not be fair to take this option against her in a serious matter involving life and limb and when it was all along the assumption that the claim forms were to be completed in English.

47.Second, the Board suggested that the Applicant could have enlisted Kodjo’s assistance to complete her claim forms.  Kodjo had all along assisted the Applicant as her interpreter until he registered his marriage with a Hong Kong resident in August 2014. Thereafter he continued to assist her in other ways.  While the Applicant could not legally compel Kodjo to assist her, both Kodjo’s alleged refusal to assist and the Applicant’s acceptance of such refusal is inexplicable and incredible in view of the fact that the two of them continued to live as if they were in a matrimonial relationship and with Kodjo fathering three more children with the Applicant.  Kodjo is part of her daily life.  He even answered her telephone for her.

48.The DLS suggested at some point that Kodjo could not assist because of conflict of interest since he and the Applicant were making separate claims.  That was a mere assertion. Other than that inchoate explanation, the nature of the conflict was wholly unexplained.  It is difficult to see how there could be conflict because both Kodjo and the Applicant together with their six children are seeking non-refoulement protection against risks from the same risk state.  More importantly, Kodjo’s claim had been heard and concluded.  The conflict ceased to exist.  

49.The reason given by Kodjo to an immigration officer during a telephone conversation on 24 June 2021 was that he was not a qualified interpreter.  This could not be a good reason as he had been helping the Applicant with her language disability in the conduct of her daily life and in the processing of her non-refoulement claim at least up to August 2014.  There was no complaint by the Applicant that he was inadequate.  Kodjo was able to handle his own non-refoulement claim.  There is nothing to suggest Kodjo is unable to assist the Applicant with her language disability.

50.In the Notice of Appeal, the Applicant explained that Kodjo could not assist because he was suffering from trauma and psychiatric problem.  She gave no particulars about the trauma and his psychiatric problem.  These are also matters in respect of which medical evidence is anticipated.  The Applicant is required to produce evidence in writing, but she has none. 

51.Kodjo, the Applicant and their six children share a common goal of seeking protection in Hong Kong. He and the Applicant are living together as if they were in a matrimonial relationship.  Though legally, the Applicant may not compel Kodjo to assist, it takes a lot of persuasion and credible evidence to convince the Board that despite her genuine efforts she was unable to secure his assistance.  In an application to reopen, the Applicant has to show by sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond her control she had not been able to return the completed claim forms.  Whether the Applicant has discharged that burden is a question of fact for the Board.  The incontrovertible factual circumstances were such that this burden was not discharged by a mere assertion.  It was open to the Board to find the reasons or excuses given by Kodjo were not genuine and the Applicant’s failure to secure his assistance did not arise out of circumstances beyond her control.

52.Third, the Board suggested the Applicant could complete the claim forms in a language which she is most comfortable with and leave it to Director to secure a translation.  The use of a non-official language in completing the claim forms had never been suggested to the Applicant or in the contemplation of the parties, for the same reasons as given in paragraph 46, this Court does not consider it fair to take this option into account, though it is a possible option which the Director should have put to the Applicant. 

53.Fourth, the Board suggested that the Applicant could enlist Child-1’s and/or Child-2’s assistance in completing the claim forms just as she had done in 2021 when communicating with the Director and the Board.  As noted in paragraph 30, Child-1 and Child 2 were respectively aged 14 and 11 as at the time of issue of the Refusal Notice. They were brought up by the Applicant in Togo and should be communicable with her in Ewe Apla.  They are receiving education in Hong Kong and should be communicable in English.  Child-1, in particular, should be receiving junior high school education at the time of the issue of the Refusal Notice.  He should be reasonably capable of communicating in Ewe Apla with the Applicant and expressing her ideas in English.  There was no reason why they, particularly Child-1, could not usefully assist the Applicant in completing the claim forms.  The Applicant is their mother.  All of them have a common interest in seeking protection in Hong Kong.  Child-1 and Child 2 would benefit from their mother’s success in obtaining protection.  They had no problem about conflict of interest, trauma or psychiatric problem as Kodjo claimed.  The Applicant has not shown by credible evidence that Child-1 and Child-2 were unable to assist.  In fact, the evidence is to the contrary.  Child-1 had assisted by writing letters in English on her behalf.  There is no reason why the Applicant did not enlist their assistance.  She has to find means to complete the forms from her own resources, including the assistance from her own children in just the same way as any other claimants from other risk states have to find assistance from among their own ethnic communities.  Enlisting the help of her children is an easy option which the Applicant could have adopted.  Her failure to do so is strong evidence that she has not exercised her best endeavour to complete her claim forms and her failure to complete and return the claim forms was not due to circumstances beyond her control.

54.Thus, there were at least two options with which the Applicant could have completed the claim forms.  These two options are workable solutions to her language disability.  Only if she had returned the completed claim forms, any inadequacy arising as a result of her language disability or the inadequacies of Kodjo’s or her children’s assistance could be cured by an Ewe interpreter if she is willing to communicate with him and/or the professional assistance of the DLS if she is willing to accept their services.  But as the Board had highlighted, the Applicant repeatedly refused the services of the DLS.  She refused to use the DLS on 5 December 2019.  At a session before the issue of the last warning about deemed withdrawal, she was informed of the availability of the DLS.  She refused the offer and even refused to accept the immigration officer’s letter making the offer.  The letter was then sent to her by post on 14 January 2020.  But she kept herself out of reach by the DLS so that eventually the DLS had to cease to act for her on 12 March 2020.  Her un-cooperative attitude is evidence on which the Board may find that she had failed to use her best endeavour to complete the claim forms and that her failure to do so was not due to circumstances beyond her control.

55.The Applicant now claims she can complete the claim forms in English.  That is a post-Decision event.  It has no relevance to her failure to complete the claim forms before the issue of the Deemed Withdrawal Notice and her failure to offer to do so at the hearing of her application to re-open[8]. It may well be argued that this is a case of life and limb and the high standard of fairness would require the Court to give the Applicant another chance. This would be a matter of discretion for the Director which is well outside the Board’s Decision and the scope of this judicial review.   On the other hand, she had all the assistance and indulgence which the authorities could have given her in the past eight years before the Refusal Notice was finally issued.  Tremendous efforts had been made by the Director in arranging for Ewe interpreters.  Huge amounts of costs had been incurred at the expense of public funds during those eight years in an attempt to assess her claims.  These costs were all wasted by her hand gestures of not understanding common Ewe dialect and her making no attempt to communicate with the interpreters.  She had no serious intention to perform her duty of joint endeavour with the immigration officers to discharge her burden of proof.  Even as of the date of hearing of the leave application, she had not completed the claim forms and the brief account of her claim is no more comprehensive than that presented by her in her written submissions in French eleven years ago.  The Court doubts the genuineness of her offer.  The non-refoulement regime is set up for the benefit of the claimants suffering from various forms of torture and persecution.  There are rules set up under the USM for the benefits of the claimants.  There is the need to enforce compliance with these rules, guidelines and practice directions of the Board.  There is also the need for assessment of the claims to be conducted efficiently and at proportionate costs and to protect the USM from abuse.   Having regard to all these, the Court consider the Director’s decision in the Refusal Notice and the Board’s Decision confirming that notice and refusing the Applicant’s appeal are rational.   

Conclusion

56.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law, the relevant legal provisions and key legal principles relating to the deemed withdrawal of a torture claim and the re-opening of such a deemed withdrawn claim; the burden of proof and standard of proof.  It correctly identified the issues and posed two relevant questions for determining the issue.  It carefully examined the surrounding circumstances and the procedural history. It extensively researched into the COI, the social, historical and political development in Togo and in particular the development of the Ewe language and its standardisation since de-colonisation.  It carefully considered the Applicant’s explanation and tested it against the above incontrovertible facts. It gave ample allowance for the Applicant credibility.  It gave her the benefit of doubt and accepted her explanation even when its inconsistencies with the COI were such that an adverse inference may be reasonably drawn.  The Board observed a very high standard of fairness. 

57.The Board considered the Applicant’s appeal on the basis of the primary facts, ie the incontrovertible factual background and COI which are not in dispute.  These are the Board’s finding of facts which the Applicant could have no complaint.  It was on the basis of these facts, that the Board further found the Applicant had failed to use her best endeavour to complete the claim forms and that her failure was not due to circumstances beyond her control.  These are mixed finding of facts and of the law.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.

58.The effect of the Decision may appear to be draconian, but that is the consequence of the Applicant’s own failure to accept her burden of proving her claim, her duty of joint endeavour and her duty to exercise her best endeavour to communicate with the immigration officers through the Ewe interpreters so as to enable her to discharge her burden of proof.  The Board made no error of law in the Decision.  When the Applicant’s case is viewed in its proper perspective, not only is the Decision far from being irrational, it is very reasonable and rational.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. 

59.For the above reasons, the Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, her application for leave to apply for judicial review is refused.

Dated 11^thday of April 2024.

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