Hounkpedji Messanh v Torture Claims Appeal Board

Court:Court of Appeal (Hong Kong)
Judgement Number:CACV164/2017
Judgment Date:16 Mar 2018
Neutral Citation:[2018] HKCA 152
CACV164/2017 HOUNKPEDJI MESSANH v. TORTURE CLAIMS APPEAL BOARD

CACV 164/2017

[2018] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2017

(ON APPEAL FROM HCAL NO 105 of 2017)

___________________________

BETWEEN
HOUNKPEDJI MESSANH Applicant
and
TORTURE CLAIMS APPEAL BOARD Putative
Respondent

___________________________

Before: Hon Cheung CJHC and Lam VP in Court
Dates of Hearing: 10 January and 13 March 2018
Date of Judgment: 16 March 2018

________________

JUDGMENT

________________

Hon Lam VP (giving the Judgment of the Court):

1. This is an appeal against the decision of Chung J on 7 July 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Togo to Hong Kong as a visitor on 28 April 2013. He overstayed since 13 May 2013 and surrendered himself to the Immigration Department on 28 May 2013. On 26 July 2013 he lodged a non-refoulement claim. The claims were based on alleged fear of harm from the Togolese government by reason of his membership of an opposition party called ANC.

2. The Director decided against the claims on 24 May 2016. The decision covered BOR 3 risk, persecution risk and torture risk. By a supplemental decision of 5 January 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 23 January 2017, the Board dismissed the appeal on 2 March 2017.

4. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board. The Form 86 filed by the applicant on 29 March 2017 did not contain any ground for seeking relief. In his affidavit of 29 March 2017, he relied on the following grounds:

(a) Lack of legal representation before the Board; and

(b) The Board did not examine his documents adequately and he believed his claim was wrongly interpreted and misunderstood.

5. The judge reviewed the materials carefully. He gave the following reasons in refusing leave at [6] to [13] of the written decision of 7 July 2017:

“ 6. The written decision of the Director shows the following history:

(1) the applicant joined the Alliance of National Change (“ANC”) in 2012, a political party demanding for democracy in Togo;

(2) the applicant attended ANC gatherings, and took part in movements, rallies and meetings arranged by ANC;

(3) following a series of fires in Lome and Kara, Togo in 2013, (the applicant claimed) the government blamed ANC for them, and began to arrest ANC members;

(4) the applicant began to receive mysterious anonymous telephone calls in 2013. They were not reported to the police as the applicant believed they would not help him;

(5) one of the applicant’s friends, also an ANC member, disappeared. Before his disappearance, the friend also...

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