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HCAL 733/2020
[2020] HKCFI 2911
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 733 of 2020
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Emmanuel Issac |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
The application for leave to apply for Judicial Review be withdrawn.
Observations for the Applicant:
1. The non-refoulement claim of the applicant was rejected by the Director of Immigration on 23 July 2018. His appeal to TCAB was dismissed on 2 April 2020. He filed an application for leave for judicial review on 22 April 2020.
2. On 6 October 2020, he filed an affidavit to cancel the leave application. He was granted dependant visa.
3. Given the change of circumstances, I grant leave for him to withdraw the leave application.
4. I have also considered the decision of the TCAB. Had there not been the change of circumstances, I would have refused leave for judicial review. The main reasons are as follows:
(a) The applicant was born on 1 January 1976 at Cape Coast, Ghana. He received primary education from 1981 to 1987. He then worked as a labourer in Accra (1996-1998), dish washer in Togo (1998-2002) and shoe polishing work in South Africa (2002-2004).
(b) He entered Hong Kong from China illegally on 27 July 2005[1]. He was arrested by the police on 7 November 2006f or illegal remaining in Hong Kong. He was later released on recognisance 7 May 2007. His torture claim was refused on 27 February 2013. He filed a non-refoulement claim on 12 November 2013.
(c) The basis of his claim was that he would be harmed or killed by his father as he had been converted to Christianity. His father was the spiritual leader of a religious group called Voldu Shrine.
(d) One day while in primary school, he came across a Christian priest. He was very impressed by the preaching and decided to convert to Christianity. He claimed to have been baptized at Elimina in 1998 but later change to 1992.
(e) His father was very angry on knowing this. His father and the followers planned to kill him in December 1992. He was determined to stick to Christianity and decided to leave Ghana.
(f) In 1992, he left his home town and stayed with a priest in Elimina, a province in Ghana. He stayed there from December 1992—October 1996. He went to churches very often.
(g) One day in October 1996, he was attacked by the followers of his father. He was taken to a room. He was tortured repeatedly. Around November, he was rescued by his step mother who gave him some money. She told him to leave. He received treatment in the Korlebu Hospital for wounds at his forehead and thigh. He also had two front teeth knocked off during the detention. He was not hospitalised. He started work in Accra. He dared not report this incident to the police since they were Voldu followers.
(h) In 1998, he fled to Togo and worked there until 2002. He went to Cape Town, South Africa in 2002 and stayed with his friend. He told another friend about his background. That friend arranged him to go to China.
5. The adjudicator pointed out that the applicant’s evidence was full of discrepancies. He concluded that the applicant made up the story about the kidnap and the threats by his Father and the followers. The following is some main points:
(a) In his NCF, the applicant never mentioned that his father had harmed or attempted to harm him or kill him. However, in his letter to the Director dated 2 January 2007, he said his father drove him out of home with a knife and wanted to kill him after learning about his conversion to Christianity. This incident should have occurred during his primary school days, the applicant would not have forgotten.[2]
(b) There were inconsistent versions about who would kill the applicant. Whether his father would kill the applicant; his father would instruct the followers to kill the applicant or his father would instruct the Voldu God to kill the applicant.[3]
(c) The applicant was inconsistent as to the time he was baptized and his religious activities from 1992-1996.[4]
(d) The applicant fled his country for fear of his life, he stayed in Togo, South Africa and China for quite some time before coming to Hong Kong. He delayed for about 15 months before applying for non-refoulement protection.[5]
6. The adjudicator concluded that there was insufficient evidence to support the claims under BOR 2, BOR 3 and persecution risk. There was reasonable State protection. There were reasonable options for internal relocation.
7. In my view, the decision of the TCAB was reasonable given the unreliable evidence of the applicant. There was no error of law or procedures.
Dated the 18th day of November 2020.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 18 November 2020
Emmanuel Issac
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12681/18/7/431/G42
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2177/18 (formerly RBCZ/2000359/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] He sneaked into China in early May 2005.
[2] Paragraphs 25-29, the decision of TCAB.
[3] Paragraphs 34-45, the decision of TCAB.
[4] Paragraphs 49-53, the decision of TCAB.
[5] Paragraph 111, the decision of TCAB. He overstayed from 7/2005 to 11/2006 without taking any action.
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