ANTHONY OWUSU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2496/2018

[2022] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2496 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision dated 31 October 2018 by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dismissing his appeal against the Director’s Second Decision as described below (the “Board’s BOR 2 Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Ghana.  He entered Hong Kong as a visitor on 19 April 2005 and was permitted to remain for 30 days.  However, he did not depart within the prescribed time limit and had overstayed since 20 May 2005.  On 22 January 2009, he was arrested by the police for overstaying. On 26 January 2009, he raised a torture claim.  Upon the implementation of unified screening mechanism, his torture claim was taken as a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the elderly leaders of his village because he refused their request to succeed his father’s position as the leader of Shrine.

5.  According to the applicant, his father was the leader of Shrine in the village.  However, in around 2000, he converted his religion from Shrine to Christian. The applicant only disclosed this decision to his mother.  After his conversion, he refused his father’s requests to attend the Shrine activities. In early 2004, the applicant’s father passed away.  As the first born son, the applicant should succeed his title as the leader of the Shrine.  However, the applicant refused.  He was then threatened by the elderly leaders in his village.  To avoid being forced into taking up the title, the applicant escaped to another village.  Feared that they would eventually locate him, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 August 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director rejected his claim on Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm from the elderly leaders was assessed to be low.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable option [17]-[21].

8.  In the Notice of Further Decision dated 9 January 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board.  On 12 December 2014, the Board conducted an oral hearing for his appeal.

10.  The Board observed that, from the time when the applicant refused to accede to the elderly leaders’ requests to the time when he departed for Hong Kong, he had no further encounter with the elderly leaders [22]-[23].  It also noticed that, on the applicant’s own evidence, he had no knowledge of the elderly leaders ever harming anyone else [27].  Besides, after considering the country of origin information (“COI”), the Board found that state protection would be available to the applicant [29]-[35].

11.  Further, the Board found that the applicant only had one encounter with the elderly leaders who, according to his own description, were not men of violence.  The applicant was never inflicted with any physical harms or threatened by them.  As a result, the Board concluded that the alleged risk of harm from the elderly leaders was unsubstantiated [36]-[43].  In any event, internal relocation was proven a viable option for the applicant [53].

12.  For the above reasons, in the decision dated 10 June 2015, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision. The applicant did not appeal the Board’s decision dated 10 June 2015 any further and it has become final.

13.  Thereafter, the applicant appealed the Director’s Second Decision to the Board.  The Board considered that it was appropriate to dispose this appeal on paper.  In the applicant’s ground of petitions, he advanced several grounds of appeal that the Director’s approach in handling the COI was wrong; the Director took into account irrelevant or incorrect considerations; the Director failed to take into account relevant considerations; and a repetition of his claim [10].

14.  The Board recapped the applicant’s personal background and his claim [11]-[15].  It also took into account the present situation where the applicant had no contact with members of his family and was not aware of the circumstances back in his home country [16].

15.  The Board reiterated that at no time after the applicant’s rejection did the elderly leaders cause any trouble or inflict any harms on him [17].  It noted that the applicant failed to provide any additional information for his BOR 2 risk assessment.  As a result, the Board concluded that there was no evidence to support the applicant’s claim on BOR 2 risk.  By way of the Board’s BOR 2 Decision, the Board dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 dated 7 November 2018 for leave to apply for judicial review of the Board’s Decision.

17.  In his affidavit in support of his application, the applicant did not set out any specific ground.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s BOR 2 Decision should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  There is no valid reason to challenge the Board’s Decision.

22.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s BOR 2 Decision. Accordingly, I dismiss his application.

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