KOTEY GLORIA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 65/2022

[2024] HKCFI 2641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 65 OF 2022

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

The 1^st, 2^nd and 3^rd Applicants’ application for leave to apply for

judicial review be dismissed.

Observations for the Applicant:

1.  The 1^st Applicant (“A1”) is a 43-year-old national of Ghana who arrived in Hong Kong on 2 November 2006 as a visitor with permission to remain as such up to 16 November 2006 when she did not depart and instead overstayed, and was arrested by police almost 2 years later on 4 October 2008 for which she was subsequently convicted and sentenced to prison for 6 weeks when she then raised a torture claim later taken as a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Ghana she would be harmed or killed by her former employer over their monetary dispute, and upon subsequently giving birth to her son, 2^nd Applicant (“A2”) in 2013, and her daughter, 3^rd Applicant (“A3”) in 2016, she also raised a non-refoulement claim for each of them on the same basis. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Accra, Ghana. After leaving school she worked as a saleslady in a shop in the Accra Market in her home district to make her living.

3.  In November 2006 her employer gave her US$5,000 to travel to Hong Kong to purchase goods for the shop, and so on 2 November 2006 she arrived in Hong Kong as a visitor, during which she accidentally lost the money in a bag on a taxi, and when she later informed her employer in Ghana on the phone, her employer became furious and threatened to kill her when she returned to Ghana, and so A1 was afraid to leave Hong Kong and therefore overstayed, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection to the Immigration Department.

4.  While released on recognizance pending the determination of her claim, A1 formed a relationship with a Guinean man, and with whom she gave birth to their children A2 and A3 in Hong Kong, but the Guinean man had subsequently left Hong Kong for the Ivory Coast in West Africa where he had married another woman.

5.  A1 then raised similar claims for both of her children on the same basis, and for which she completed a Torture Claim Form (“TCF”) on 29 June 2013 and a Supplementary Claim Form (“SCF”) on 29 May 2014 jointly for the 3 of them with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the scheduled screening interviews before an immigration officer either for herself or her children due to alleged medical reasons.

6.  By a Notice of Decision dated 31 October 2017 the Director of Immigration (“Director”) rejected the claims of the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from A1’s former employer upon their return to Ghana as low due to the absence of or low intensity and frequency of past ill-treatment from A1’s former employer against any of them, that there is no evidence of any real intention of A1’s former employer to seriously harm or kill A1 let alone of any knowledge of her children A2 or A3, that in any event it was a private monetary dispute between A1 and her former employer only without any official involvement that state or police protection would be available to the Applicants 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 27 million people spread across a vast territory of more than 238,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with her 2 children A2 and A3 to other areas of the country away from her home district in large cities such as Kumasi where it would be difficult if not impossible for anyone to locate them, while relevant COI also show that supports and assistances will also be available to the Applicants as single mother and illegitimate children to live and adapt in Ghana.

8.  The Applicants then lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 4 oral hearings on 14 August 2018, 12 June 2019, 7 November 2019 and 27 November 2020 before the Board with their lawyer from DLS during which A1 gave evidence for herself and her children and answered questions raised of their claims by the Adjudicator for the Board and also with submissions made by their lawyer on their behalves. On 9 November 2021 their appeals were as dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim of fear of harm from her former employer over their monetary dispute that caused her to overstay in Hong Kong to seek protection for herself and subsequently for her 2 children after their birth in Hong Kong, that even if the risk of harm from her former employer were real that there was no reliable evidence of any real intention of her former employer to seriously harm or kill her or her children whom her former employer would not even know of their existence other than A1’s own bare assertions or groundless speculations, and that in any event any such risk arose from a private monetary dispute between A1 and her former employer only without any official involvement that state or police protection would be available to the Applicants upon their return to Ghana as well as reasonable internal relocation alternatives for A1 to move safely with her children to other parts of the country away from her home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds, while relevant and reliable COI also show that supports and assistances for single mothers and illegitimate children will be available from various governmental departments and NGOs and in particularly to assist both A2 and A3 to adapt into life in Ghana including receiving proper education and welfare support as entitled citizens in the Ghanaian society.

10.  On 18 January 2022, the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for their intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim as well as submission from their lawyer, and as the Board in its decision also separately and properly considered and determined any minor-specific non-refoulement claims of A2 and A3 as minors in accordance with the principles laid down by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971, of which the Board did specifically allude to, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Ghana, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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 each of the non-refoulement claims of the Applicants.

15.  Moreover, A1 recently on 15 August 2024 filed an affirmation requesting to withdraw their application as she wanted to return with her children to Ghana, and that all 3 Applicants had subsequently departed Hong Kong for Ghana.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of their subsequent departure from Hong Kong to return to Ghana, I accordingly dismiss their 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