YAKUBU DANLAD v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 82/2018

[2019] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 82 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 arrived in Hong Kong on 11 February 2009 with permission to remain as a visitor up to 14 February 2009 when he did not depart and instead overstayed and was arrested by police on 2 November 2009.  After he was referred to the Immigration Department for investigation, he lodged a torture claim which was later assessed as a non-refoulement claim on the basis that if he returned to Ghana he would be harmed or killed by some gangsters over certain disputes.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Accra, Ghana.  After leaving school he worked as a mechanic and trained as a boxer during his spare time.

3.  One day in 2008 he and his sister and cousin were visiting the town Bolgatanga, and when he and his cousin returned to their lodging after a stroll in the neighbourhood, they found three men raping his sister but were eventually able to fight them off.  Afterwards the applicant took his sister to the local hospital for examination and reported the incident to the police but no arrests were made.

4.  Several days later while the applicant was talking with his cousin outside their lodging, a group of men appeared to accuse them for killing one of their friends during the earlier incident and proceeded to attack them with knives and machetes.  While the applicant managed to escape with only a shoulder injury, his cousin was killed in the attack.  The applicant then reported the attack to the police and learnt that those men were local gangsters.

5.  After the incident the applicant and his sister returned to Accra, but when he received threatening phone calls from those gangsters warning him that next time he would be killed like his cousin, he changed his phone number and fled to Kumasi, a city in central Ghana.

6.  However, when he still continued to receive threatening phone calls from those gangsters, he decided that it was no longer safe to remain in Ghana, and as at the same time he was sponsored by the government to attend certain boxing activities in New Zealand, he decided to seek protection there and sought assistance from the local agent who arranged for his flight to New Zealand via Hong Kong where he was supposed to receive his remaining flight ticket to New Zealand from the Hong Kong agent, but when he arrived in Hong Kong on 8 February 2009 with permission to stay for only three days but was unable to find the local agent, he therefore left for Macau and to re-enter Hong Kong on 11 February 2009 for further time to contact the local agent, but when he was still unable to contact the local agent, he overstayed in Hong Kong and subsequently lodged his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 28 October 2014 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.  By a Notice of Decision dated 10 June 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 those gangsters upon his return to Ghana as low due to the low intensity and frequency of past ill-treatment from them, that his conduct and travelling arrangements from Ghana to Hong Kong were inconsistent with that of a person with genuine fear of being harmed or killed in his home country, that in any event it is unlikely that after all these years that those gangsters would still have any adverse interest in him, that in the absence of 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 25 million people spread across a vast territory of more than 238,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to return to Ghana but away from Bolgatanga where those gangsters were located, such as to Accra where he used to live, or other large cities such as Kumasi or Ashanti where it would be difficult if not impossible for those local gangsters in Bolgatanga to locate him.

9.  By a Notice of Further Decision dated 12 June 2017 the Director again rejected the applicant’s claim in the absence of any further or additional facts from him 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, the notice of which was filed on 22 June 2015, and for which he attended an oral hearing on 12 December 2016 before the Board during which he gave evidence and also ‘updated’ his case by producing a statement claiming that those local gangsters who had threatened him before had now been turned into land guards as the most fearful group in Ghana that had put people in great fear and panic. On 5 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found no reliable evidence to support the applicant’s updated claim that those gangsters involved in his previous attack had indeed been turned or empowered into land guards and rejected his such claim, and assessed the level of harm from those local gangsters upon his return to Ghana as low, and that state protection as well as reasonable internal relocation in other parts of Ghana away from where those local gangsters were located would further lower or negate any such risk of harm from them.  

12.  On 16 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward some grounds for his intended challenge which can essentially be summarized in that the Board was wrong to ignore or disregard his fear of risk of harm from the land guards who have recently been used by some politicians as terrorists attacking innocent people in Ghana where state protection cannot be guaranteed and which he will face if refouled to Ghana.  

13.  In its decision the Board assessed and evaluated this claim of the applicant as follows:

“ 23.  A hearing was held on 12 December 2016 to hear his appeal. During the hearing, he produced a document called ‘The updates of my case’ (Ex. A). The document begins with the following introduction:-

‘ The background of my case involves several attempts by some gangsters to kill me because I was incidentally responsible for the death of one of their deceased member during my struggle with him. These gangsters have now been empowered by some traditional leaders as well as politicians and they turned into land guards … In recent years, land guards have become the most fearful groups in various activities in Ghana. These activities continues to put people under fear and panic …’

24.  Towards the end of the documents, he said that chiefs are using land guards to defend territories, and politicians use them as body guards. Some orders are constantly made by some politicians to carry out arrest and detain people without their being investigated. Land guards take such advantages to carry out attacks against their targeted individuals, and since the Appellant is still on their wanted list, his life is still under a serious threat if he is forced by the Immigration Department to be returned back to Ghana.

25.  The Appellant does not know the identities of the gangsters involved in the Rape Incident and the assault Incident.  There is simply no evidence to show that the gangsters involved in these two Incidents have been turned into land guards.  There is also no evidence to show the existence of any wanted list.  The document therefore has no probative value to his case, and I therefore cannot and do not attach any weight to it.”  

14.  It is therefore clear that the adjudicator did properly and adequately deal with this ‘updated’ claim of the applicant, and based on the information and materials available and with the benefit of having heard his oral evidence, the adjudicator was rightly entitled to reject this claim of the applicant for the reasons set out in his decision, and I do not find any basis or merit in this complaint of the applicant.   

15.  As has been repeatedly emphasized by the Court of Appeal, 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 being 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.

16.  Apart from the above complaint which I have found to have no basis or merit, the applicant did not put forth any other ground, nor did he show any error in the Board’s decision to justify any interference by the Court.

17.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.  In the premises and having considered 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.

19.  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