ASARE ERNEST OWUSU v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 372/2018

[2019] HKCFI 1512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 372 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

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

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 42-year-old national of Ghana who last entered Hong Kong on 5 February 2007 with permission to remain as a visitor up to 19 February 2007 when he did not depart and instead overstayed until his arrest by the police on 22 February 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Ghana he would be harmed or killed by his two paternal uncles and their men over certain land dispute, and upon the rejection of the torture claim by the Immigration Department, he then lodged a non-refoulement claim on the same basis.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born in a village in Nima, Accra, Ghana but went to school in Nigeria.  After leaving school he helped his father farming his farmland both in Nigeria and Ghana.  When his father passed away in 1995 he inherited a cocoa farmland in Ghana from his father which was however also coveted by his two uncles who wanted the cocoa farmland for themselves and thus resulted in constant conflicts and disputes with the applicant who was then working in Nigeria.

3.  In December 2001 when the applicant visited his home in Ghana to check on his cocoa farmland, he was approached by his two uncles accompanied by some unknown men who demanded him to hand over the cocoa farmland to them, and when the applicant refused, he was attacked by those unknown men with knives that he suffered some serious stab wounds in his body but managed to escape to receive medical treatment at the village’s chemist before returning to Nigeria.

4.  In December 2002 when the applicant returned to Ghana to check on his farmland, he was again approached by his two uncles who resided in the same house and was attacked by their men but he was able to flee from the scene and to receive medical treatment to his injuries at the village chemist before returning to Nigeria.

5.  In October 2006 when he again returned to his ancestor home in Ghana to check on his farmland, he was rebuked by his uncles for returning to claim his cocoa farmland and was again assaulted by their men but he managed to flee from the scene and escaped back to Nigeria.

6.  Two months later in December 2006 the applicant returned to Ghana to check on his cocoa farmland but when he found that it had been taken possession by his uncles with some of their men already working there, he decided to leave Ghana for his own safety by first going to Togo and then from there he flew to Hong Kong in February 2007 and subsequently lodged his torture claim, and when it was rejected he then lodged his non-refoulement claim by completing a Supplementary Claim Form on 2 June 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 31 August 2016 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 the Hong Kong Bill of Rights (“HKBOR”) (“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 Refugees (“persecution risk”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncles and their men upon his return to Ghana as low due to the low intensity and frequency of past ill-treatment from them and as his uncles had already taken possession of the cocoa farmland with no further reason to harm or kill him, that it was a private family dispute without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Ghana with a large population of 26 million people spread across a vast territory of more than 227,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Ghana away from his home district such as Kumasi where it would be difficult if not impossible for his uncles or their men to locate him.

9.  By a Notice of Further Decision dated 27 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 14 September 2016, and for which he attended before the Board on 5 September 2017 when he initially gave some evidence but then requested for an adjournment of his hearing to enable him to seek legal assistance or representation to which the adjudicator acceded, and when he failed to attend the adjourned hearing on 27 October 2017 allegedly for various medical reasons for which the adjudicator again agreed to adjourn to a third hearing on 5 February 2018, but when the applicant still failed to attend the third hearing allegedly again for various medical reasons of himself and his wife and children and sought a further adjournment, the adjudicator refused his request and proceeded to deal with his appeal on paper and in his absence.  On 1 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found instances of implausibility and inconsistency in the applicant’s account that raised serious concerns about the credibility of his claim, but as he failed to avail himself of repeated opportunities to participate in a hearing to address or respond to these concerns, it was not satisfied that his claims are true that he had had been targeted and harmed in Ghana whether by or at the behest of his uncles in connection with a real or imagined inheritance claim to a cocoa plantation or for any other reason, and therefore rejected his claim under all the applicable grounds.  

12.  On 8 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he merely exhibited copies of all his previous documents and the decisions of the Director and the Board.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interviews before the Immigration Department and in the process before the Board, where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

14.  The applicant’s claim was rejected by the Board on his credibility for the detailed analysis and reasons set out in paragraphs 48 – 89 of its decision, including the reasons for the adjudicator’s decision not to entertain any further adjournment after the applicant failed to attend the third scheduled hearing which the adjudicator was entitled to do in the circumstances and in my judgment cannot be faulted, and in the absence of any error or procedural unfairness being identified or elaborated by the applicant, I am unable to see any basis or merit in his intended challenge.     

15.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Ghana, a finding clearly accepted by the Board when it confirmed the Director’s decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly 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