FUSSEINI MOHAMED v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1651/2018

[2020] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1651 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 14 May 2018 be refused; and18

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s ex parte application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to the applicant. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant has had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appears before this Court.

The applicant

3.  The applicant is a national of Ghana. He came to Hong Kong on 28 April 2004. He was issued with a China visa on 17 May 2004 in Hong Kong. On 2 July 2004, he went to China and returned to Hong Kong on 4 July 2004 as a visitor. From 3 October 2004, he overstayed. On 18 June 2007, he surrendered to the Immigration Department. By way of written representation dated 25 June 2007, he made his torture claim. His application was refused. He appealed to the Board, which refused his appeal on 28 March 2014. By an order of the High Court on 23 June 2015, the torture claim was remitted to the Immigration Department for fresh determination. On 17 November 2016, the Director wrote to him inviting him to submit any additional facts relevant to his non-refoulement claim on all applicable grounds, viz. torture risk, BOR 2 risk, BOR 3 risk and persecution risk as described below.

4.  He claimed that if refouled, he would be harmed or killed by the Abudus men because of the chieftaincy dispute between the Abudu and the Andani families and he was the son of one of the kingmakers of the Andani family.

5.  He claimed that Ya Na Yakubu Andani II, the last King of Daghon in Ghana, was his paternal uncle and they were from the same clan. Ya Na Yakubu Andani II was killed by Abudus clan on 27 March 2002. In the same year, he was attacked by a group of Abudus men. They attacked him with firewood and cutlass. They pushed him, kicked him, stepped on him and sworn at him. They stabbed his right forearm and cut the veins of his left little finger when he resisted. He was tortured mentally and physically for 20 minutes. At that time, some neighbours intervened and shouted for help. He managed to escape from the men and ran home. Those people followed him home and attacked his house with shots and arrows. They threatened to set his house on fire. He jumped out of the window and escaped into a bush. He went to Sang Village. He heard that his uncle Ya Na Yakubu Andani II was killed. He reported the matter to police. But the police told him that they were not permitted to do anything. He stayed in Sang Village for three weeks. His aunt came and took him to Accra, another village. Since then, he never returned to Yendi, where he was born and raised and stayed with his aunt in Nima Accra until he left Ghana for Hong Kong in 2004.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

7.  By Notice of Decision dated 28 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s decision

8.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 6 April 2018.

9.  By Decision dated 14 May 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [28-144], it concluded:

“145. I have rejected the Applicant’s past claims and I have not accepted that the Applicant was, or there is a real risk that he will be harmed in the Dagbon chieftaincy dispute. I have not accepted that the Applicant was from the Dagbon family or the Andani clan. There is no credible evidence to indicate that the Applicant was caught up in any other clan or tribal conflicts or chieftaincy disputes. I find the risk of the Applicant being caught up in such conflicts or disputes upon return to be remote and there is no real risk that he will face harm on this basis.

146. Considering the Applicant’s particular circumstances and all the relevant matters, including but not limited to his age, his accepted profile, his marital status, family links and connections, religion, ethnicity, past experiences, skills, education, the security situation and country conditions, I find that it would be reasonable and not unduly harsh for the Applicant to safely relocate to another area, such as Kumasi or Takoradi in Ghana.”

Application for leave to apply for Judicial Review

11.  In his Form 86 dated 16 August 2018, the applicant applied for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said that he had been in Hong Kong for some 15 years. For the past 12 years, he had been undergoing the screening process. His case had been considered by the Court of Appeal and was remitted back for re-consideration. He complained that he was not allowed to clarify the position of his hospitalization in 2002 because the Adjudicator did not allow him to do so.

DISCUSSION

The Board’s Decision

13.  The applicant’s application is late for two days only. I shall consider the merits of his case in order to determine whether time should be extended for his application.

14.  The applicant appeared before me. He conducted the hearing himself in English without any assistance from an interpreter. He confirmed that he had had a fair interview with the Immigration officer, against whom he made no complaint. However, he complained about the hearing before the Adjudicator of the Board, saying that she did not give him full opportunity of clarifying points that he wished to clarify, in particular, the hospital records of his injuries in 2002.

15.  Because of his complaint above, I looked at the Board’s Decision closely myself, bearing in mind that the standard of review is that of “rigorous examination and anxious scrutiny” [45] Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187

16.  I shall set out below the Board’s findings after careful analysis of the facts and for the reasons given by the Adjudicator.

1. In relation to the paternal cousin’s activities, arrest and detention, the Adjudicator found that the applicant is not seeking to rely on those events as a basis for his non-refoulement claim and she accepted that he will not face a real risk of harm on this basis upon return [30].

2. The Adjudicator did not accept the assassination of Naa Dasana Andani has anything to do with the claimed Andani and Abudu chieftaincy dispute. She also did not accept that Naa Dasana Andani was his paternal uncle because for reasons given, she had not accepted that he belongs to the Andani clan or from the kingmaker’s family [35].

3. The Adjudicator did not accept he or his family belongs to the Andani clan, the Dagombas tribe or ethnicity, or that the late Ya Na Yakubu Andani II was his paternal uncle. She did not accept that his father was one of the supporters, an elder or a kingmaker. She did not accept that his father had any influence or role on putting the late Ya Na Yakubu Andani II on the throne, or that his family have any influence on the appointment of the successor of the king. She also did not accept any of the claimed past incidents [53].

4. The Adjudicator did not accept that he has been truthful in his claims [60].

5. In relation to whether his father was a supporter of the Andani clan, the Adjudicator found his evidence vague and unpersuasive and for questions put to him, he was unable to provide a reasonable explanation [65-68].

6. In the Adjudicator’s words: “I find that the Applicant’s changing evidence at the hearing above regarding his father’s position or title in the clan further undermines his case. The oral evidence at the hearing above gives rise to concern about the Applicant’s overall credibility [69].

7. Again, in the Adjudicator’s words:” … I find that the Applicant created a profile and manufactured his entire case in an attempt to create a basis for his non-refoulement claim [77]. This is also supported by the numerous significant inconsistencies and contradictions in the Applicant’s evidence regarding the claimed past incidents. Some of the claimed past incidents are also inconsistent with, and not supported by country information. These are detailed below [78].

8. In relation to the medical report that the applicant complained, the Adjudicator said: “Having considered the contents, nature, provenance and the Applicant’s evidence, I do not accept that this is a genuine medical report. I find that this document not only does not overcome my concerns with the Applicant’s problematic evidence but it also gives rise to further questions and concerns. Also, it is clear from the Applicant’s own evidence above that the author of this report was not the treating doctor and that the information contained in the report was a mere reproduction of information given by the Applicant to the doctor. I do not consider this to be independent evidence that corroborates the Applicant’s claims [118].

17.  It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

18.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board had committed any error in reaching its decision.

19.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

20.  Since there is no merit in the applicant’s intended judicial review, I decide not to grant him an extension of time for his application for leave to apply for judicial review of the Board’s Decision.

CONCLUSION

21.  Accordingly, I dismiss his application.

22.  It is further directed that:

1. If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

2. When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

3. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

4. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

5. Liberty to apply.

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