Agama George Hinneh v. Torture Claims Appeal Board

HCAL 257/2017

[2018] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 257 of 2017

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 33-year-old man of Ghanaian national who last entered Hong Kong on 13 November 2005 with permission to remain as a visitor until 27 November 2005.  He did not depart and instead overstayed until 10 December 2007 when he surrendered to the Immigration Department and lodged a torture claim on the basis that if he were to return to Ghana he would be harmed or killed by his Muslim neighbours due to his father’s dispute with them over certain farmland in his homeland.  He was subsequently released on recognizance pending the determination of his claim by the Department.

2.The applicant was born and raised in Jinijini, Berekum, Ghana to a Christian family with an elder brother and two younger sisters, and where his mother and one of the sisters still live after his brother has moved away upon marriage to the eastern region of Ghana.  His family used to grow cocoa beans in a large piece of farmland in the neighboring Mempeasem village owned by his father. Upon leaving secondary school the applicant went to a football academy in 2000 and became a professional football player from 2001 to 2003 in Ghana, and in 2004 he traveled to Hong Kong to play football in the Mainland, returning home in Ghana for training during off-seasons. 

3.One day in September 2005 while the applicant was training in Madina, Accra, Ghana, he met a friend at the bus station and was told that something bad had happened back in his home village.  He became concerned and called his mother who then told him that his father was killed by their Muslim neighbours in their dispute over the boundary of their farmland.  As she was crying he was unable to obtain any details of the killing but was warned by his mother not to return to Mempeasem as the Muslims were also looking to kill him and his brother, and that he should leave Ghana for his own safety.  

4.The applicant therefore left Ghana on 21 October 2005 for Mainland China where he stayed for three weeks before coming to Hong Kong on 13 November 2005.  When he was subsequently told by his mother that one of his sisters was also killed by the Muslim neighbours in another dispute, he applied for refugee claim to the United Nation High Commissioner for Refugees but did not follow up with it, and instead lodged his torture claim with the Immigration Department upon his surrender on 10 December 2007, and subsequently completed his Non-refoulement Claim Form (“NCF”) on 29 July 2014 with legal assistance under the Duty Lawyer Service.

5.By a Notice of Decision dated 4 June 2015 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

6.In his detailed decision the Director did not accept that the Muslim neighbours have any real and imminent adverse interest in the applicant given that they have never made any threats directly against him, the alleged killings of his father and sister are all hearsay and unsupported by any evidence, that the rest of his family are still living in Ghana without any incidents, that objective Country of Origin Information (“COI”) show that with on-going reforms in Ghana that state and police protection are available to the applicant even if the risk is true and still persists as at most it was a local private dispute between the applicant’s family and their neighbours with no evidence to suggest that either the state or the police have been involved, and that internal relocation alternatives are available and reasonable for the applicant to relocate to other parts of Ghana such as the eastern region where his brother has been residing free of any incidents.  

7.By a Notice of Further Decision dated 20 October 2016 the Director rejected the applicant’s claim again in the absence of any response from him to an earlier invitation to submit any additional information 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”).

8.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, which appeal he filed on 17 June 2015 and in which the Board treated it as against both decisions, and arranged an oral hearing on 3 November 2016 for the applicant to attend before the Board to give evidence which he did in person.  On 8 May 2017 the Board dismissed his appeal and confirmed the decisions of the Director.

9.In its decision the Board upon considering the applicant’s claim and hearing him in evidence agreed with the Director that the applicant has failed to establish a case of non-refoulement whether under risks of torture or BOR 3 or BOR 2 or persecution, and gave the following reasons for dismissing his appeal:

“ 18. I do not accept that the handful of unidentified Muslim neighbours, whom the Applicant has only alleged that he had learned about via mere hearsay, being assailants to his father and sister (even if true) of a long 11 years ago, and who had never confronted the Appellant himself, when the Appellant was not even the owner of the land, and especially when his mother and sister have never been confronted, would be interested in locating the Appellant all over Ghana in order to harm or kill him, and especially if he does not go back to his home village he would not be fighting for occupation of the land, and that is even if the MN should have huge resources and manpower, as well as are willing to expend same to search for a needle in a haystack. I find no substantial risk or any substantial basis of fear. There are places in Ghana, at least other than the Appellant’s home village, where as a 32-year-old and able-bodied young man with work experience he can safely reside without undue hardship, which is another reason for today’s appeal to fail, independent of what was stated earlier.”

10.On 1 June 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision but in which he did not put forward any grounds in support of his intended challenge, nor did he in his supporting affirmation of the same date other than the following words:

“ I will like to appeal for review of my case under the Torture Claim Appeal Board enclosed supporting document marked ‘SD1’ and Hearing Bundle marked ‘SD2’.”

11.The so-called supporting document marked “SD1” turns out to be a letter dated 8 May 2017 from the Board addressed to him to inform him of the Board’s said decision on his appeal and enclosing a copy thereof for him, while “SD2” is as he stated his hearing bundle for use in his appeal before the Board.

12.There are therefore no grounds of review from the applicant who is clearly not happy with the Board’s decision, and whilst that decision is subject to judicial review, the court does not sit on appeal from the Board’s decision or look at its merits for dismissing the claim, as it only plays a supervisory role in the judicial review: TK v Jenkins [2013] 1 HKC 526 at para 40.

13.Nevertheless, having scrutinized the decision of the Board, and for that matter those of the Director as well, and with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in those decisions of ether of them, or any failure on their part to apply high standards of fairness in their consideration of the applicant’s claim, or that any of their decisions is Wednesbury unreasonable in the public law sense.

14.It is clear to me that both the Director and the adjudicator for the Board considered the claim on all applicable grounds, applied all the relevant criteria, took into account of ample objective COI relevant to the applicant’s case, engaged in a joint endeavor with him in the enquiry of his case despite the onus being upon him, and afforded him with ample opportunity to state his case and to present his evidence and materials before arriving at their decisions.  I am simply unable to find any criticism of their determinations which were open to them on the facts and evidence before them.

15.In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 20^th day of April 2018.

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