AGBEMAVOR MAWUTOR JOYCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 717/2021

[2026] HKCFI 2477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 717 of 2021

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 May 2021 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 29 April 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 September 2019 (the “Notice”), refusing her application for non‑refoulement protection. 

2.   At the hearing, the Ewe/English interpreter could not attend court. After the situation was explained to her, the Applicant waived her right to be provided with an interpreter.  She spoke good English and responded to the Court’s questions with sensible answers, which indicated to the Court that she was truly conversant in English.  Hence, the Court conducted the proceedings in English.

The Applicant’s claim

3.  The Applicant is a Ghanaian national, now aged 37.  She arrived in Hong Kong on 4 April 2019 as a visitor and lodged a non-refoulement claim by written signification on 18 April 2019.  Her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. It was rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision.  She now applies for leave to apply for judicial review of that Decision.

4.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, she claims she will be killed by her stepfather and his Muslim friends, if returned to Ghana, for various reasons including her refusal to convert from Christianity to Islam.

5.  The Applicant is a Christian.  Her father died while she was about ten years old.  Her mother re-married a Muslim in 2017.  At the time, the Applicant was 29 years old and married.  Her husband was working in the United States (the “US”) and visited her about once a month while she was living in her mother’s and stepfather’s home.  Her stepfather attempted to force her to change her religion many times, but she refused.  He allowed his friends to use her private room many times.  The Applicant was afraid that his friends would do something to her.  One day in November 2017, the Applicant was pregnant and was about to give birth.  At the time, no one else other than her stepfather was at home; but he refused to take her to hospital and deserted her.  The Applicant laboured alone but her child did not survive the birth.  Later, her stepfather again threatened to kill her if she did not change her religion.  He confronted her with a knife but was stopped by her mother who came between them.  In early 2019, the Applicant could not stand him any more and moved out.  She told her husband that she wanted to travel abroad.  Her husband suggested a trip to Hong Kong.  On 1 April 2019, the Applicant traveled to Beijing where she met her husband.  Then they came to Hong Kong together.  On 7 April 2019, after she told her husband how their son died, her husband became furious and they had a big quarrel.  Her husband was afraid that he would be targeted by her stepfather.  He deserted her and returned to the US.  The Applicant does not know his whereabouts.  

6.  The Applicant is afraid to return to Ghana because she fears that her stepfather would kill her.  She does not consider internal relocation feasible because she has no family ties or connections in other regions of Ghana to enable her to seek refuge.  As her stepfather is an organizer of the New Patriotic Party (the “NPP”) which is the ruling political party in Ghana, she believes he could locate her through his connection with the NPP.  She does not consider she could access state protection as she believes the police only follow orders from the ruling party.

The finding of the Board

7.  The Board found the Applicant credible.  It essentially accepted her account of her case and that she genuinely holds a subjective fear for her safety, but not that her fears are objectively well-founded.  It found if the Applicant is returned to Ghana, there is only a remote possibility of her being subjected to serious or significant harm inflicted by or at the behest of her stepfather, whether because of religion, politics, or for any other reasons. It is not satisfied that she faces a real or substantial risk of being subjected to serious or significant harm there.  In view of her education and working experience, it found she could relocate to Accra where she grew up and was educated.  Applying the law applicable to non-refoulement protection to these facts and some further necessary finding of facts, the Board found she is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  Hence, it dismissed her appeal against the Notice.

The legal principles applicable to judicial review

8.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

9.  In answer to the Court’s question about errors of law in the Decision, the Applicant expressed her disagreement with the Board’s finding that her risk of harm is little.  She emphasized her concern about her safety in Ghana.  She is concerned that her stepfather who is a person in power may harm her.   All these are challenges against the Board’s finding of fact, which is impermissible save for errors of law, procedural unfairness or irrationality in the Board’s Decision, which the Court will re-visit in its overall scrutiny of the Board’s Decision.

10.  In answer to the Court’s question about procedural unfairness, the Applicant said she was provided with an interpreter during her screening interview.  She said she had some disagreement with the interpreter’s interpretation, but she resolved that with the interpreter at the hearing.  She has no complaint about interpretation during the screening interview.

11.  However, she said she was not provided with an interpreter at the hearing before the Board.  She said she responded to the Board’s question in English.  She did not ask the Board to provide her with an interpreter and the proceedings were conducted in English.  She had no complaint about the effect of the absence of interpretation service.  She mentioned about a mistake in the translation of a certificate relating to the birth of her baby.  After the Court pointed out to her that the Board had accepted that her baby was found dead on arrival at the clinic, she accepted the mistake was immaterial.  As was mentioned above, the Applicant dispensed with the provision of interpretation service in the present hearing due to non-availability of Ewe/English interpreter.  It is also the Court’s observation that the Applicant is fully conversant in English.  She has no real need for interpretation.  She accepted she has no problem participating fully in the appeal hearing before the Board.  She also advanced no other complaints about procedural unfairness. 

12.  The Applicant raised no complaint about irrationality in the Decision.

13.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM, the burden of proof and standard of proof, correctly identified the issues and observed a very high standard of fairness.  The Board accepted the factual evidence of the Applicant’s case and assessed her claim on the basis of the case as she advanced.  On that basis, it found her risk of harm to be low.  It was unfortunate that the Applicant did not have a happy childhood with the early death of her father and was thrusted with a stepfather who had no respect for her choice of religion and forced her to change her religion.  In demonstrating his chauvinism over her, he even let her down in her moment of need which together with his conduct created a genuine fear in the Applicant’s mind that he will really kill her.  But on an objective view, the Board was not satisfied that she would face any real or substantial risk of being subjected to serious or significant harm on her return to Ghana and that she could also avoid the risk of harm, if such should arise, by relocation to Accra where she grew up and was educated.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her risks were real and substantial. The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

15.  For the above reasons, the Applicant’s leave application is refused.

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