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HCAL 2123/2018
[2023] HKCFI 360
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2123 of 2018
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Appiah Samuel |
Applicant |
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and
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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
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Putative
Interested Party |
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 To:
1. Leave to amend the Form 86 by naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the proposed respondent and the Director of Immigration as the interested party granted; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision (the “leave application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 21 August 2018 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 November 2013(the “2013 Notice”) and 19 May 2017 (the “2017 Notice”). Though the Director is named as a proposed respondent, no relief is sought in respect of the two Notices or any decision of the Director. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the Board is named as the proposed respondent and the Director as the interested party.
2. The Applicant is a Ghanaian national, now aged 46. He first arrived in Hong Kong on 28 February 2005 as a visitor and made seven return trips into Mainland China. He last entered Hong Kong on 24 November 2005 and was permitted to remain until 29 November 2005. He overstayed and was arrested on 29 August 2007. On 15 September 2007, he raised a non-refoulement claim based on Torture Risk[1] ground which was dismissed by the Director by the 2013 Notice. His claim based on the remaining applicable grounds under the Unified Screening Mechanism (“USM”), namely: BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] grounds was dismissed by the 2017 Notice. He appealed to the Board against the decision in the two Notices. His appeal was dismissed by the Board’s Decision.
3. On 4 October 2018, he made this leave application. He did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the torture claim form and supplementary claim form (“SCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that, if returned to Ghana, he would be harmed by his aunt, Afarkuwa, and her supporters because of disputes over his appointment as the village chief.
5. The Applicant was born in April 1976 in ODA, Eastern Ghana. He is single and lived in Manso. He has received ten years of education and has ten years of working experience as a farmer. His deceased uncle was the village chief in his home village in Manso. After his uncle died in July 2004, the elders in the village considered that the Applicant being the eldest nephew of his uncle should succeed as chief in accordance with custom. However, his aunt wanted her son, Isaac who was born albeit five months later in September 1976, to succeed as the chief.
6. The Applicant’s aunt worked for the Women Association (the “Women Association”) which has the support of the government. She organized programmes aimed at helping women in the village. Her brother-in-law was a police officer. The police provided extra manpower and special security for the events organized by the Women Association. In that position, his aunt was able to mobilise some villagers to support Isaac. Hence, the village community was divided into two camps: one supporting his appointment as chief and one supporting his aunt and Isaac. Hostility arose between the two camps resulted in arson and criminal damage to huts and property.
7. The Applicant was kidnapped by five to ten men on 15 November 2004. He was stripped naked, tied to a tree and beaten all over his body with sticks. The kidnappers told him not to accept appointment as village chief or they would kill him. They also drowned him in a nearby river several times until he agreed to refuse the appointment. He was rescued by a group of nearby hunters.
8. One of the kidnappers was caught by the villagers and beaten to death. Before he died he confessed to have been working for his aunt. The Applicant claimed that it was common for people to be punished without the involvement by the police. News of his kidnapping and the death of the kidnapper reached the police. The police took a statement from the Applicant while he was in hospital. The villagers responsible for the death of the kidnappers were arrested for murder and taken into custody but he did not know the outcome of that investigation. The Applicant alleged that sometime after the kidnapping, his aunt arranged her supporters to burn down his farm. His aunt was also arrested, though subsequently released for want of evidence for charging her for any offence.
9. After his discharge from the hospital in late 2004, the Applicant went to live with his mother’s friend, Doris, for two weeks. He returned to his home village to attend to his father’s funeral in January 2005. His aunt also attended and had a dispute with his sister.
10. After the dispute, in late January 2005, his sister collapsed on the ground. His mother took her sister to see an Okomfo (someone with magical power) who informed them that his sister had stepped on some black magic powder intended to hurt the Applicant. The Okomfo cured his sister. His mother reported the use of black magic powder to the village elders but they could not come to any decision. The Applicant believes his aunt would not give up killing him and her supporters would also cause him harm. On the suggestion of his mother and Doris, the Applicant fled to Hong Kong.
11. In the SCF, the Applicant claimed that since his departure from Ghana, his aunt had more members in the Women Association and had become more powerful in the village. Due to her political influence, the police and other authorities did not take any action against her. She also threw a pan of hot oil at his sister over an argument concerning the Applicant but the police did not take any action. His sister had to leave Ghana to flee from his aunt. He did not believe the Ghanaian authorities would be able to protect him as they could not be with him all the time. He feared that by the time the authorities arrived it would be too late already.
The finding of the Board
12. The Board drew adverse inference of his credibility from his failure to raise a claim for protection for over a year and nine months. It did not accept his explanation that he did not know about the claims procedure, that he believed he could not obtain any assistance from the Hong Kong police just as he could not from the Ghanaian police, and that he was in fear as he had overstayed. The Board also did not accept that he would travel some 12,000 km to Hong Kong to avoid his aunt when he could have easily avoided her by relocating to a different locality in Ghana like his sister. The Board considered him incredible and his evidence unreliable. Accordingly, the Board found he had failed to discharge the burden of proving the factual basis to support his claim for non-refoulement protection.
13. The Board nonetheless assessed his claim on the basis of the case as he asserted. The Board noted that the Applicant did not suffer any injury which required major medical treatment and that his aunt was arrested, though subsequently released for want of evidence. It found there was no evidence that the Applicant had suffered severe pain and physical or mental suffering reaching the minimum level of severity or that the ill-treatment was inflicted on the Applicant with official acquiescence, whether active or passive as to support a claim for protection based on Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds. The Board also found that his aunt would unlikely be interested in locating the Applicant after a lapse of fourteen years. Hence, the risk of harm, if there were any, would be low.
14. Furthermore, on the basis of authoritative and credible Country of Origin Information (“COI”) the Board that the Applicant could seek state protection or could relocate to other localities in Ghana to minimise or avoid the risk of harm; and that as an able-bodied man, he could safely live in other locations such as Accra or Kumasi without undue hardship.
15. For all these reasons, the Board dismissed his appeal against the two Notices.
The applicable legal principle
16. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds of application
17. The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he basically repeated his case and his fears. Absent any particular grounds for application, the court could only focus on the usual criticisms raised in judicial reviews such as errors of law, procedural unfairness or irrationality in the Decision.
Discussion and conclusion
18. This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. 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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. For reasons as given by the Board, the Board found the Applicant not credible and rejected his evidence as unreliable. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Board went further and assessed the Applicant's claim on the basis of the case as he asserted and found he was not entitled to protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. This Court could not detect any such vitiating elements. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
Dated the 10th day of February 2023
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(Chung Lai Fan, Christine)
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 10 February 2023
Appiah Samuel
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 10 February 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7334/17/6/30/G25;
TCAB 959/13/12/34/G30
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2449/16 (Formerly RBCZ 2001814/14); QA T/C 387/07 (Formerly RBCZ 1066/07)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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