SIDDIQ MOHAMMED ABUBAKAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 80/2018

[2019] HKCFI 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 80 of 2018

 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 45-year-old national of Ghana who last arrived in Hong Kong on 5 December 2004 with permission to remain as a visitor up to 8 December 2004 when he did not depart and instead overstayed until 13 August 2010 when he surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if he returned to Ghana he would be harmed or killed for failing to pay the balance of a business transaction.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Tolon, Kumbungu District, Ghana where his father and siblings still reside.  After leaving school he worked in cattle trading business.

3.  In February 2002 the applicant bought 54 cows from MH for 972,000 Ghanaian Cedis, of which 108,000 Cedis were paid in advance, with the balance of 864,000 Cedis to be paid after the applicant had sold the cows.  MH was an important person in the village and was in the running for election for the village chief at that time.

4.  However, during the applicant’s transportation of the cows to the market, the truck broke down and the journey took much longer than the supply of food and water for the cows that many of them died before reaching the market, for which the applicant suffered a heavy financial loss and was thus unable to pay the balance to MH.  As a result MH withdrew from the election and later died from a heart attack, for which his two sons blamed the applicant for their father’s misfortune and threatened him with violence to pay them what he owed their father, and when the applicant was unable to do so, they would attack him every time they ran into him in the village.

5.  To avoid their threats and assaults, the applicant moved away to Accra in 2004 where he stayed for two month without incidents, but as he was still concerned about the threats from MH’s sons, he decided to leave Ghana and therefore departed on 30 July 2004 for Hong Kong and from there he went to China, but when he made another trip to Hong Kong on 5 December 2004, he overstayed until 2010 when he surrendered to the Immigration Department and raised his torture claim which was later assessed as a non-refoulement claim under the unified screening mechanism, for which he completed a Supplementary Claim Form on 5 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 18 July 2014 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”).

7.  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 MH’s sons upon his return to Ghana as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on their part to seriously harm or kill the applicant other than to put pressure on him to repay the money he owed to their father, that it was a private monetary dispute between them 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 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 move to other part of Ghana away from his home district where it would be difficult if not impossible for MH’s sons to locate him.

8.  By a Notice of Further Decision dated 8 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation 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”).

9.  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 1 August 2014, and for which he attended an oral hearing on 7 January 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the applicant’s alleged threats and ill-treatments from MH’s sons did not attain the minimum level of severity under any of the applicable risks, that they occurred as far back as in 2002 that it did not accept that MH’s sons would still have any adverse interest in him after all these years, and that he can relocate to other part of Ghana without any chance of being located by MH’s sons, and concluded that his non-refoulement claim failed on all applicable grounds.

11.  On 16 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the Board’s decision was unfair and unreasonable but without providing any particulars or specifics or elaborations as to how it was so, and in the absence of any legal error or procedural unfairness in the decision being clearly and properly identified by the applicant, I am unable to find any basis or merit in such complaint of his, and I do not see how it can reasonably be arguable in his intended challenge.

12.  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 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.

13.  In the present case, with the benefit of screening interviews and oral evidence from the applicant who had had legal representation in the process before the Immigration Department, and on the basis of the materials available to them, both the Director and the Board had found that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Ghana, they were therefore entitled to find no justification to afford him with non-refoulement protection in Hong Kong,and I do not see any reason to interfere with such evaluation of theirs: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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.

15.  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