ABOAGYE RICHARDSON v. DIRECTOR OF IMMIGRATION

HCAL386/2017

[2018] HKCFI 677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 386 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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Ghanaian national who first arrived in Hong Kong on 25 July 2006 and went to Mainland China before his Hong Kong Visa expired but returned on same day which extended his Hong Kong Visa until 21 August 2006.  On that last day he left Hong Kong only to return on the same day which extended his Visa until 28 August 2006.  On 26 August he left for Mainland China and return to Hong Kong on the same day but was only permitted to remain until 28 August 2006; his Visa was not extended any further.  The applicant then overstayed in Hong Kong after his Visa expired from 29 August 2006.  He surrendered to the Immigration Department on 19 March 2007, almost a year later.

2.  The applicant was convicted of the offence of overstaying and on 29 March 2007 he was sentenced to 21 days’ imprisonment suspended for 18 months.  The applicant did not report to the Immigration Department as required for repatriation on 2 April 2007.  The applicant was later arrested over a year later by the police on 25 May 2008.  After this arrest, he lodged a non-refoulement protection claim.  This claim was rejected by the Director of Immigration (“the Director”) on 21 May 2015 and 25 October 2016.

3.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 28 April 2017.  The applicant filed a notice of application for leave to apply for judicial review on 11 July 2017.  He did file an affirmation to support his application but it did not contain any grounds.  An oral hearing was set down for 29 November 2017 and then 12 December 2017 with the correct interpreter; the applicant appeared in person having had his application for legal aid refused.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore there is no need to repeat it here.

4.  The basis of the applicant’s claim was that if he were refouled to Ghana he would be harmed or even killed at the hands of his father’s older half-brother on account of a land dispute.  The applicant was born in 1987, educated to secondary school level, worked for the Coca-Cola company and was single when he left his country.  His father inherited a plot of land in their home village but he had a half-brother who was a bully.  In 2005, the applicant’s father fell ill and the applicant says he transferred the land into the applicant’s name but the applicant has no documents to show this transfer.  After that, the half-brother and his sons wanted the land and in September 2005 physically assaulted the applicant during an argument about it.  A police report was made.  The half-brother continued to put pressure on the applicant and family to transfer the land to him.  The applicant ran away to avoid losing the land and harm to himself.

5.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  The adjudicator treated the appeal as a rehearing. He correctly set out the law and the key legal principles applicable to all four grounds.  He set out the applicant’s evidence.  He considered the Country of Origin information referred to by the Director and listed in the Director’s decision.  He adopted that information and agreed that there was corruption in the police and in government departments in Ghana but that there was generally State protection available for victims of crime.  He then analysed the applicant’s evidence and considered his credibility.

7.  The adjudicator considered section 37ZD(1) of the Immigration Ordinance which provides that certain failings on the part of the applicant can be taken into consideration as affecting and damaging his credibility.  The adjudicator considered the applicant’s evidence that he did not lodge a claim in Egypt after he left Ghana nor did he in China.  Once he arrived in Hong Kong, he did not lodge a claim immediately.  He went in and out of the territory and then overstayed.  He did not claim even after his first arrest; he only lodged a claim after his second arrest.

8.  In his previous evidence he had said he was told in Ghana to come to Hong Kong to seek asylum, yet in May 2008, he told an Immigration officer that he had come to Hong Kong to seek a football contract and did not know that he could make a torture claim at that stage.  During the oral appeal hearing, he claimed he did not know he could make a torture claim until after his second arrest.  None of the above is consistent and the adjudicator found it hard to believe.  The adjudicator found that the applicant’s failure to make any claim at all between arriving in Egypt and his second arrest in Hong Kong suggested he did not leave Ghana to seek asylum elsewhere because of a real subjective fear but rather that he left primarily to look for work and income.  The adjudicator did not believe he was a genuine claimant.  This calls into question the credibility of his claim that he fears a half uncle in Ghana.

9.  The adjudicator questioned why the land became an issue only between the applicant and his half uncle.  Why was it not a problem between the applicant’s father and his half‑brother?  There is no evidence of any trouble between them.  There were other material matters that affected credibility the adjudicator questioned and he set them out in his decision.

10.  Ultimately, having found some serious and material discrepancies in the applicant’s credibility, the adjudicator found there to be no evidence in which he could find there to be a real and personal risk that if the applicant was refouled, his half uncle will kill him, torture him or subject him to CIDTP or that he would not be able to access the State protection which is generally available.

11.  The adjudicator went on to find that the applicant was not at risk of torture if he returned to Ghana, not at risk of ill-treatment under BOR 3 or at risk of a violation of his rights under BOR 2 or had a well-founded fear of being persecuted for a convention reason.  Although he did not need to, the adjudicator found that if there was any risk, there was the viable option of internal relocation without undue hardship to the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  The applicant had listed no grounds in his affirmation.  He said that the Immigration Department now required him to leave Hong Kong and he was unwilling to do so because his life was still at risk in his home country.  He has listed the Director of Immigration as the proposed respondent. If he seriously intended to seek leave to review the decisions of the director, his application would be just under 23 months and 6 months late, per Order 53 Rule 4. In any event, the applicant has utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal/petition as a de novo hearing or rehearing.

13.  The applicant would have covered all the mistakes that he considered the director made at the appeal with the adjudicator. The adjudicator would have looked at the decision of the director for any errors as it treated the appeal as a rehearing. Only in very exceptional circumstances should an applicant be able to judicial review both the director and the adjudicator of the TCAB especially as the question of delay arises where the decision of the director is concerned. In my view, it ought to be the TCAB who is the proposed respondent here.

14.  In any event, during the oral hearing I did ask the applicant if he had any grounds to submit and his only complaint was against the adjudicator of the TCAB. The complaint was that the adjudicator only took five months to make a decision which was a relatively short period of time considering the applicant had been in Hong Kong for 11 years.  He reiterated that he had not committed any crimes in Hong Kong.  He repeated the reasons why he had left Ghana and said the situation had not changed; it was still not safe for him to return.  None of the above information constitutes a ground that has any merit against the adjudicator’s decision.

15.  The applicant also informed the court that he has a daughter born to a Hong Kong resident but the mother has disowned the daughter who is now living in a foster home.  She is under the care of the Social Welfare Department.  The applicant visits her regularly.  He believes that the mother has signed over her parental rights to the Social Welfare Department.  He believes the department will not give him his daughter because he is an asylum seeker.  I did explain that his family situation in Hong Kong is irrelevant to these proceedings.

16.  Even though the applicant has not put forward any grounds, I have nonetheless considered with rigourous examination and anxious scrutiny the adjudicator’s decision.  I find it to be without fault.  He has analysed the material, claims and evidence carefully.

17.  I do not find any errors of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision is not Wednesbury unreasonable.  I did also consider the director’s decision and draw the same conclusions. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

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