DADE KOFI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1821/2019

[2024] HKCFI 2449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1821 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 15 July 2024.

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, aged 49, is a Ghanaian. He entered Hong Kong illegally in November 2005 and was arrested by the police on 18 November 2006. He made a torture claim on 3 December 2006, which was rejected on 21 December 2012. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 18 February 2013. The claim was made on the basis that, if refouled, he would be harmed or killed by his two uncles due to a land dispute. On 28 August 2013, the applicant was arrested by the police for taking up employment while a removal order was in force. He was subsequently sentenced to imprisonment for nine months and two weeks.

5.  According to the applicant, his father inherited land from the applicant’s grandfather in 2005 (“the inherited land”). The applicant’s uncles were unsatisfied with such arrangement and tried to take the land from the applicant’s father. Since then, a chain of events happened to the applicant’s family, which he believed that his uncles played a part, including (i) his father was paralysed by black magic; (ii) his mother had a traffic accident injuring her right foot and (iii) his brother was kidnapped by gangsters. Furthermore, the applicant’s uncles also poisoned and killed all the crops on the inherited land.

6.  One day in October 2005, when the applicant was returning home from market, his neighbour told him that everything on the inherited land was burnt down. The applicant was also informed that his parents were taken to another village, while there was no news about his brother. The applicant believed that his uncles had taken over the land and sold it to a land contractor. Around 10-12 days later, he learnt about his parents’ death. In November 2005, the applicant left Ghana for China, where his passport was stolen by his agent. Eventually, he sneaked into Hong Kong by boat.

7.  While in Hong Kong, the applicant confirmed his parents’ death from other Ghanaians and heard from them that his brother had also died. The applicant was of the view that he could not seek help from the police because they were corrupt and would side with his wealthy uncles who bribed them. He also believed that the police would not intervene in private land dispute. The applicant considered internal relocation not viable as well because he had no one to rely on elsewhere in Ghana and that his uncles could easily locate him by bribing the police.

8.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 12 April 2018 (“the Director’s Decision”).

The Director’s Decisions

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

a. 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”);

b. 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

c. 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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from his uncles indicated a small future risk of harm upon his return to Ghana [19], (ii) the risk of harm should have dissipated given the passage of time and that his uncles had already taken and sold the inherited land [20]-[21]; (iii) the majority of the applicant’s claim was based on hearsay and speculation [22]-[23]; (iv) state protection would be available to him [24]-[28]; (v) internal relocation would be viable [29]-[33] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [34]-[40] or Persecution risk [41]-[47].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 19 November 2018, the Board conducted an oral hearing.

12.  The Board noted from the country of origin information that although land dispute is prevalent in Ghana, the Ghanaian government had devoted a good deal of attention to the problem [13]-[14]. Meanwhile, the Board found that the applicant had never sought redress of his land dispute problem through the established mechanism in Ghana and there was also delay in seeking protection [15]-[16].

13.  The Board agreed with the Director that the claimed risk of harm from his uncles should have dissipated given the passage of time and that his uncles had already taken and sold the inherited land [19]. Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [21]-[32].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.  The applicant has filed Form 86 on 2 July 2024 to apply for leave to apply for judicial review of the Board’s Decision.

16.  In his affidavit in support of this application, the applicant enclosed the hearing bundle without specifying any ground to challenge the Board’s Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s Decision.

19.  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.”

20.  For the reasons given above, the Board rejected his claim and dismissed his appeal. The strongest reason is that his uncle had already taken the piece of land and sold it. There is simply no motive for his uncle to harm him if he returns to his country.

21.  The applicant did not dispute the above fact. He has raised no valid reason to challenge the Board’s Decision.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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