X v. Torture Claims Appeal Board

HCAL 143/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 143 OF 2013

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J U D G M E N T

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1.This is an application for leave to apply for judicial review to challenge a decision by the adjudicator made on the petition of the applicant in respect of a decision of the Director of Immigration rejecting his claim under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) that there are substantial grounds for believing that he would be in danger of being subject to torture if he returned to his country of origin.

2.The applicant is a national of Cameroon who first arrived in Hong Kong in February 2004.  During this time he at first sought status as a refugee and later as a torture claimant which were both rejected.  The application for refugee status was rejected for the main reason that the applicant’s claim lacked credibility.

3.His application as a torture claimant was rejected by the Director of Immigration on 14 September 2012.  He petitioned the decision which was reviewed by an adjudicator on the papers without a hearing.  The adjudicator handed down his decision on 15 November 2012 dismissing the petition.

4.After anxious consideration, I have decided to grant leave for reasons I am about to explain, but essentially because of the issue of whether procedural fairness required an oral hearing for the determination of the petition by the adjudicator.

5.Before I do, I want to comment on the delay occasioned by this application.  The adjudicator’s decision was handed down on 15 November 2012.  A legal aid certificate was granted on 31 May 2013 and the case was assigned to solicitors on the same day and later to counsel on 2 July 2013.  An Anonymity Order was granted on 2 September 2013 and this application was then filed on 27 September 2013.  The application has been made out of time and although I have granted leave, I wish to be addressed at the substantive hearing of the application for judicial review about the time taken to process this matter and to institute these proceedings.

6.The applicant’s torture claim is based on two matters.  The first matter is that he fears that if he returns to Cameroon he will be killed by village elders or driven insane through spells cast on him by witch doctors because he refused to accept the position of Fon-teh following the death of his grandfather in 2000.  A Fon-teh is a tribal leader. The applicant had taken up the Christian faith and as a consequence refused to follow the beliefs and customs of a Fon-teh.  Having undertaken the initiation process to become a Fon-teh in September 2003, he refused to complete it.  He claims that because he learnt the secrets of the Fon-teh, this generated an animus against him by the village elders who would want him killed. The second matter concerns a dispute he had with another person over land owned by his grandfather.  The other person he claims is a member of the governing party in Cameroon and in 2001 or 2002 and 2003 he was arrested over the matter and beaten while in detention.  The case went to court which ruled in the applicant’s favour and found that the land was Fon-teh land.  He fears this person will seek revenge against him.

7.The application for leave to apply for judicial review is made on the grounds that the adjudicator failed to meet the high standard of procedural fairness required of the tribunal in that:

(1) if the adjudicator sought to challenge the applicant’s credibility, an oral hearing was warranted in order to satisfy the tribunal’s obligation of procedural fairness; and

(2) the adjudicator took account of irrelevant considerations in assessing the applicant’s claim, rendering the decision unreasonable.

8.At the ex parte hearing for leave, the applicant elaborated on the complaint under the second ground in that it was argued that the adjudicator wrongly found that the person in relation to the land dispute was not a government or public official and that he failed to make adequate inquiry in relation to the possible relocation of the applicant within his home country if he was returned.

9.The applicant was interviewed on four occasions between March and August 2012 by an Immigration Officer with respect to his torture claim.  It was ultimately rejected by an Assessor on 14 September 2012.  He petitioned the decision on the basis that the Assessor was wrong to reject that the threat of harm from his tribe had nothing to do with the Cameroon government’s interest or policy and therefore did not come within the terms of the definition of torture under the Convention.  He specifically requested in his petition that concerning credibility he be given an oral hearing so that matters relating to Cameroonian tribal beliefs and practices could be explained to the adjudicator.

10.The adjudicator after reviewing the papers decided that an oral hearing was not necessary.  He gave no reasons for the decision but it would appear that given the history of the matter and the material he had before him he was satisfied that he had all the information he needed to conduct a review of the petition without an oral hearing.  The adjudicator handed down his written decision on 15 November 2012 in which he provides a very comprehensive and considered analysis of the information and issues before him.  He correctly sets out the relevant rules and principles that he was to apply in determining the applicant’s claim.  He reasons his decision by first setting out the two matters that the applicant advanced in support of his claim.  Under each matter he describes the applicant’s account of his experiences and concerns. 

11.The adjudicator noted that in his claim the applicant asserted that the threat about not taking up the position of Fon-teh came from his uncle but when asked about it in interview he said he may be killed or made insane and he thought his uncle knew because his father was a brother of the late Fon-teh.  The adjudicator concluded that this did not amount to credible evidence and was speculation only.  There is an occasion when he quotes extensively what the applicant had stated in his interviews to point out contradictory statements he made about becoming a Fon-teh and being told the secrets of the tribe.  The adjudicator noted that at one stage the applicant said he was told the secrets of a Fon-teh, at another he said he may have been told the secrets, and at yet another he said he was not told the secrets.  The adjudicator further noted that when asked about this, he said he was told things step by step and he learnt the secret of the blood sacrifice but not the other secrets.  Although this was highlighted in his decision, it did not feature in his analysis in concluding that the applicant’s experiences did not amount to torture and that there were no substantial grounds that he would be subjected to torture if he was returned to Cameroon.   

12.The adjudicator also concluded that the applicant’s claim that he was at risk of torture because of his land dispute with another person was not supported by credible evidence as he said in interview that after he got a favourable court ruling the person in question said he would do whatever he could to own the land “but I don’t know what he will do.”  On the information and material before him, the adjudicator found that the person with whom the applicant had a land dispute was not a government or public official. 

13.Having rejected the basis of the applicant’s claim, the adjudicator commented that even if there was a genuine threat (which he rejected) he could live elsewhere in Cameroon as the matters in question were local in nature.

14.The adjudicator found that the applicant’s statements on the two matters did not amount to “credible evidence”.  This expression, in the context of the adjudicator’s decision, raises the reasonable argument whether an oral hearing was warranted to give the applicant an opportunity to explain Cameroonian tribal beliefs and customs and/or to address the issue as to the truthfulness and credibility of his account about his situation in his home country.  The issue comes down to whether or not the adjudicator was wrong in the circumstances of this case to decide the petition without conducting an oral hearing.  As to the other grounds of complaint I find they are not reasonably arguable.  Based on the information before the adjudicator and the manner in which he reasoned his decision, it was open to him to conclude that there was no genuine threat of torture to the applicant and that the person involved in the land dispute was not a government or public official.  The adjudicator’s comments about relocation were made having found there was no genuine threat of torture. 

15.The relevant principles in relation to determining torture claims have been extensively canvassed in the leading authority of Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 186 and more recently in TK v Michael C Jenkins and Anor [2013] 1 HKC 526, ST v Betty Kwan and Anor [2013] 3 HKC 86 and AM v Director of Immigration and Anor, HCAL 102/2013 (unreported).

16.The question as to whether or not an oral hearing should be conducted by an adjudicator in assessing the petition has increasingly become an issue in judicial review proceedings.  This trend is evidenced by the recent cases of Marcelo De Vera Centeno v Director of Immigration [2012] HKCU 1020, (HCAL 50/2012, 9 May 2012, (unreported)); ST v Betty Kwan and Anor [2013]3 HKC 87; and Shafqat Ali v Betty Kwan and Anors, HCAL 74/2012, 17 December 2013, (unreported).

17.Of considerable significance to this issue is the Supreme Court decision of Osborn v The Parole Board [2013] UKSC 61 where the court applied and amplified principles laid down by the House of Lords in R(West) v The Parole Board [2005] UKHL 1; [2005] 1 WLR 350.  The decision of Osborn was only recently handed down and was not cited to me in the papers or at the hearing of the leave application although other authority was referred to fairly extensively.  It is an important decision, especially when addressing the issue of whether or not procedural fairness requires an oral hearing, and if it does, in what circumstances.  This issue needs to be considered in light of the principles laid down in Osborn and the relevance of them in the context of this jurisdiction and cases of this type.

18.In light of the long history of this case, I have fixed the hearing of the application of the judicial review for 5 February 2014.  The parties are on notice to ensure that all necessary requirements are met to accord with this hearing date.

Mr Anthony Michael Gormley, instructed by Massie & Clement, for the applicant