EDWEAD JOHN also known as EDWEAD SHAIBU v. TORTURE CLAIMS APPEAL BOARD

HCAL 76/2017

[2018] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 76 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year old Ghanaian male who came to Hong Kong on 12 November 2003 on transit, and on 15 November 2003 when he was about to depart for the United Kingdom, he was found to be holding a forged Ghanaian passport in another person’s name for which he was subsequently convicted and sentenced to prison for six months.  Upon discharged from prison on 15 March 2004 he was referred to the Immigration Department and on being served with a removal order, he appealed against that order which was dismissed on 22 April 2004.  He then made his refugee application to the Hong Kong office of the United Nations High Commissioner for Refugees (“UNHCR”) which was also rejected.  On 2 March 2005 he was released on recognizance, and on 14 January 2009 he lodged his claim for non-refoulement protection (“TCF”) with the Immigration Department which was completed on 16 December 2013 with legal assistance and representation under the Duty Lawyer Service including his interview on 22 February 2014, followed by his supplementary claim form dated 3 December 2014 (“SCF”) with two further interviews before Immigration Officers, on the basis of his fear that he will be subjected to torture in Ghana if he is to return there.

2.  The applicant was born and raised in Nima, Accra, Ghana in 1976 but moved to Liberia with his father and siblings in 1981 where he was raised by this father’s second wife.  In 1987 his father died under the arrest of the National Patriotic Front of Liberia during a period of civil unrest in Liberia, and he and his siblings were therefore brought back to live in Ghana by his step mother.

3.  After leaving school he worked as a casual worker selling groceries for four years before becoming what is known in Ghana as a land guard together with his hunting friends offering armed service to land owners and tribal chiefs protecting their land from invaders, collecting debts and repossessing properties for them and acting as their body guards, and as a result he and his group would from time to time engage in violent fighting with other groups in similar services for other land owners or tribal chiefs.

4.  In 2002 during one of such encounters in which the applicant did not participate, he heard that his group had killed the chief of the Dagbon tribe in Tamale, and as a result his tribe people were looking for him and his group for revenge.  As a result the applicant decided to leave Ghana for his safety and obtained the forged passport to fly to Hong Kong in November 2003 for transit for the United Kingdom, and on 15 November 2003 when he was about to depart from Hong Kong, he was arrested for using the false passport, and subsequently filed his non-refoulement claim for protection for fear of being harmed or killed by the family and the tribe of the murdered chief if he were to return to Ghana.       

5.  On 12 May 2015 by a Notice of Decision the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugee (“Persecution Risk”).

6.  In his detailed decision and in applying the appropriate legal principles with high standard of fairness in his assessment of his claim, the Director found that even on the assumption that his claim is true, which was unsupported by any documentary evidence and was essentially based on hearsay, that the level of risk of harm to him in Ghana more than 13 years after the event was assessed to be low, that numerous objective Country of Origin Information (“COI”) show that police protection would be available to him, and that internal relocation would be reasonable for him in his circumstances to return to live and work safely in other parts of Ghana away from his home area given its large population of more than 25 million in a vast territory in excess of 238,000 square kilometers, and concluded that he has failed to establish his claim on all applicable grounds.     

7.  By a letter dated 11 November 2016 the Director invited the applicant to submit additional facts which he may consider relevant to his claim on all applicable grounds for non-refoulement protection in particularly any other absolute and non-derogable rights under Article 2 of the Hong Kong Bill of Rights including right to life (“BOR 2 Risk”), and not having received any such additional facts from him the Director on 28 November 2016 again rejected the applicant’s claim.

8.  By then the applicant was already in the process of appealing against the earlier decision of the Director to the Torture Claim Appeal Board (“the Board”), which he filed on 27 May 2015, and after giving his evidence and answering questions from the Adjudicator at a hearing on 6 December 2016, his appeal was dismissed by the Board on 8 March 2017 which confirmed both decisions of the Director.

9.  In assessing how likely is the applicant’s claim of the harm that he fears will materialize, the Adjudicator for the Board did bear in mind the COI that there has indeed been long term and continuing rivalry between the two branches of Dagbon royalty which led to the murder of the chief in 2002 and other related killings and conflicts in Ghana, that the problems caused by the use of land guards particularly by tribal chiefs in Ghana to further their own ends and the difficulties they pose to the authorities, and the deficiencies in the police force including corruption and other abuses despite the creation of the Police Intelligence and Professional Standards Bureau and other efforts of the authorities to improve police professionalism, but it also held that it was for the applicant to show not simply that these events did occur in Ghana but that they are relevant to his personal situation and the protection he personally might receive from the Ghanaian authorities, which he has ultimately failed as is rightly pointed out by the Board in where his credibility comes into question.

10.  It is plain to me the Adjudicator’s assessment of the applicant’s claim has been carried out meticulously based on all those documents listed under paragraph 17 of the decision going back to the applicant’s cautioned statements given in November 2003 when he was arrested for using a forged passport, all his interview records before Immigration Officers at the time and his subsequent torture claim representations in 2009 up to his written submissions to the Board, as well as his accounts given on all previous occasions and his evidence heard at the oral hearing by the Board before it came to its conclusion that no credence can be attached in so far as the facts relevant to the applicant’s claim are concerned, citing numerous instances of discrepancies and inconsistencies between the accounts given since November 2003 to the Immigration Department and the account being given to the Board which differ so fundamentally from each other that no plausible reason can be given, and it is illuminating just to quote some of the more glaring ones observed by the Adjudicator in the decision:

“ 55. The account he has given to the Immigration Department since pursuing his claim for non-refoulement protection and to the Board is that he is a Ghanaian, born in Ghana, fleeing the danger of harm in that country as a result of his activities as a land guard. As a result of that danger he has been obliged to leave his mother and siblings in Ghana.

56. When he was stopped at the airport on 15 November 2003 he was interviewed by an immigration officer who compiled a Control Case Report and subsequently on 16 November 2003 he gave two statements under caution.

57. Far from giving the Immigration Officers who interviewed him on those occasions the account he is now giving, on the contrary he stated that he was not a Ghanaian but had been born in Liberia to a rich family.  He stated that in about 1996 after civil war had broken out in Liberia and his whole family had been killed there, he had been rescued by Ghanaian soldiers who had taken him to Ghana. Because he was not Ghanaian he could not obtain identity documents.  He made no reference to any alleged activities as a land guard or to the reasons he now says that it is unsafe for him to return to Ghana.  Indeed he admitted both to the Immigration Officer who interviewed him and to the Magistrate who later convicted him, that he was travelling to London for the purpose of obtaining work there.”   

11.  The Adjudicator then went on to point out the conflicting accounts of the circumstances of the applicant’s alleged escape from Liberia, who accompanied him and how he travelled, the conflicting explanations of the reason he stopped over in Hong Kong, where he stayed after his arrival, and from whom he obtained the forged passport which he used to enter Hong Kong, and that his attempt to explain why he had taken such a circuitous route from Ghana if he intended to travel to London was implausible, as well as the discrepancy between the letter he submitted to the Board at the directions hearing on 12 July 2016, in which he stated that due to the danger in Ghana he had moved around Ghana and even some neighboring countries to save his life, whereas in his TCF he stated that he had not only not moved around Ghana to avoid the danger he claimed, but even stated the reason he had not done so.

12.  Accordingly in my judgment the Adjudicator was perfectly entitled to come to his conclusion that the accounts given by the applicant on different occasions differ so fundamentally from each other that no plausible reason can be given for these differences, that if he had fled Ghana out of fear of harm resulting from his activities as a land guard there, no doubt he would have given that explanation to the Hong Kong authorities in November 2003.  It is for all these reasons that the Board has found that in light of his lack of credibility, the applicant has failed to establish that he faces any real risk or chance or substantial grounds for believing that the harm he claims to fear if he returns to Ghana will materialize, and that such finding on his credibility was decisive of his appeal on all relevant grounds, and hence it was unnecessary to consider any of the other elements which the applicant would have to establish in order to be entitled to non-refoulement protection on any of the relevant grounds.                  

13.  On 14 March 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he set out three grounds for challenging the Board’s decision as follows:

(a) that his earlier application to the UNHCR dated 6 May 2005 regarding the circumstances of his flee to Hong Kong “has never been recorded in all his interviews with the Immigration of Hong Kong” of which he attached a copy to his affirmation;

(b) that the evidence used by the Board was “unfair because it was based on Country of Origin’s report without local news”; and

(c) that he wishes to challenge the decision with the “local news evidence” of which he attached two pieces to his affirmation.

14.  For the document under (a) it is necessary to just quote what the applicant at that time stated to UNHCR the following to note the discrepancies in the various accounts given by him that he was a Liberian instead of a Ghanaian referred to above by the Board:

“ … All this and many other form of persecution that I face in Ghana simply because of what as happen that a declaration by the minister of defense that Liberians in Ghana are part of a network to carry a coup in Ghana as they have been Liberia involvement in many regional conflicts, this has brought hatred and persecution to me because I have been involve with many land leaders in Ghana because there is no any jobs as we Liberians and we a very strong team for the land guard and when I come to Hong Kong hearing the leader has been killed in the bush, it was set up by some of the land leaders because we are not Ghanaians that is the reason why I am afraid for my life.”

15.  Apart from the fact that, and as pointed out by the Court of Appeal in TK v Michael Jenkins, CACV 286/2011, 21 November 29012, within reasonable bounds it is for the applicant to conduct his own investigation and obtain information and materials that he requires to prove his case, and therefore had he produced this document to the Director or the Board at the time of their assessment of his claim, if he indeed had done so, I am unable to see how it would assist him at all in advancing his case.  In fact, quite to the contrary, I would have no doubt that both the Director and the Board would still come to their same conclusion over his credibility and his claim.

16.  As for ground (b), in the absence of any particulars or specifics provided by the applicant, and given the numerous objective COI already considered by both the Director and the Board, I do not find any procedural unfairness on their part in their assessment and conclusion that the applicant has failed to establish that he faces any real risk if he returns to Ghana.

17.  Of the two pieces of “local news evidence” under (c) which the applicant exhibited to his affirmation and with which he wishes to challenge the Board’s decision, clearly the first piece which is headed “Regional News of Thursday, 3 November 2016 : Land guards strike at Amanfrom again” could have been produced to the Board by the applicant during his oral hearing on 6 December 2016 or at any time before it reached its decision in March 2017 but which he did not, while it is not clear what date is the second piece, it is still for the applicant to explain why it was never produced until now, but be that as it may, evidentially both referred to land guards activities and their related problems in Ghana, of which the Board had clearly taken into account in its consideration and assessment of the applicant’s claim before arriving at the conclusion that his credibility is decisive of his appeal on all relevant grounds.            

18.  In the premises and for the reasons given, I do not see any merits in any of the grounds relied on by the applicant in this application, and with rigorous examination and anxious scrutiny, nor do I find any error in law or procedural unfairness in the decisions of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of his claim.  Accordingly I am not satisfied that his intended application for judicial review is reasonably arguable, and I therefore refuse his leave 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