T v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 166/2017 on BabelCite. This High Court CFI judgment was delivered on 23 May 2018.
1. The applicant is a Ghanaian national who transited through Hong Kong International Airport on his way to Manila, Philippines from China on 5 December 2015. However, he was refused permission to land in Manila and repatriated back to Hong Kong the following day. The applicant then lodged a non-refoulement protection claim in Hong Kong. This claim was rejected by the Director of Immigration (“the Director”) on 5 May 2016 and 25 January 2017. The applicant then lodged an appeal/petition with the
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HCAL 166/2017 [2018] HKCFI 1004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 166 OF 2017 ___________________
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___________________ J U D G M E N T ___________________ 1.The applicant is a Ghanaian national who transited through Hong Kong International Airport on his way to Manila, Philippines from China on 5 December 2015. However, he was refused permission to land in Manila and repatriated back to Hong Kong the following day. The applicant then lodged a non-refoulement protection claim in Hong Kong. This claim was rejected by the Director of Immigration (“the Director”) on 5 May 2016 and 25 January 2017. The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 21 March 2017. The applicant then filed a notice of application for leave to apply for judicial review (“Form 86”) on 28 April 2017. The amended Form 86 was filed on 26 January 2018 pursuant to an order of this court. 2.The applicant was legally represented before the Director and the TCAB. In this application he was also legally represented. Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need summarise it here. Background 3.The basis of his claim was that if he was to return to Ghana he would be harmed or killed by (1) Geoff and/or George and their men because (2) he had refused to continue to participate in their gang activities; (3) he had fled from forcible recruitment in a gang; (4) he faced a risk of harm from the authorities of Ghana and/or Togo because of his past involvement in the illegal activities of George and Geoff; (5) he would be prosecuted by the authorities of Togo and/or Ghana because he had obtained a Togolese passport fraudulently; (6) the prison conditions in Togo and/or Ghana were so abhorrent they could be defined as torture; (7) he would not receive a fair trial in either country and (8) the applicant would be subject to physical and mental abuse in detention, not afford bail and face lengthy pre-trial detention. Fear of “Geoff” 4.The Director clarified with the applicant that he was a Ghanaian national and not also from Togo as he initially suggested when he landed in Hong Kong. The applicant was born in 1988, has a university qualification and is single with a child born out of wedlock in 2009 who lives with her mother in Ghana. The applicant’s mother died of cancer when he was very young, about five years old. He is an only child. His father had to borrow a large sum of money to pay for the medical bills of his mother; about US$70,000 from a racketeer/businessman in Ghana called Geoff. He was involved in many illegal activities and because the applicant’s father was unable to repay his debt, the applicant went to live with and work for Geoff as a form of repayment of the debt. 5.The applicant lived with Geoff but also attended primary and secondary school at the same time. He also had regular contact with his father and would often spend nights at his father’s home. As the applicant grew older, Geoff used him to run errands, smuggle packages across the border to Togo and even escort young women over the border who were, he believed, then working as prostitutes as arranged by Geoff. 6.When the applicant was 16 he met a girl called Ezhouma in Geoff’s house who was held captive and prisoner. She asked him to help her escape and he did but Geoff and his associates found out and found her. She was then taken across the border to Togo where the applicant believed she was made to work as a prostitute. Geoff’s men then beat the applicant to teach him a lesson. He was beaten with a wooden plank, punched and kicked as well as slashed. His forehead, right arm and finger on his left hand was cut. The applicant’s father was called and took him to hospital where he remained for a few hours and was stitched up. 7.After his discharge from hospital that same day, the applicant then moved to Accra to live with a family friend and completed his A‑levels in about 2005. The assault and injuries were not reported to the police because Geoff was very influential and the applicant’s own illegal activities would come to light and he would face charges. 8.The applicant said in about 2008 Geoff demanded his father repay him the money he borrowed to pay for his wife’s medical bills. When his father could only agree to pay in instalments, he was beaten severely by Geoff’s men and slashed with a knife. Geoff threatened to go after the applicant on the next occasion. The applicant’s father did not report this incident to the police. 9.The applicant did not come across Geoff again until February 2015, some 10 years later, when he returned to his home to visit his sick father and then again in April when he attended his father’s funeral. In February 2015, Geoff told the applicant to forget the past and offered him employment to assist him with his Chinese clients as the applicant could speak Mandarin now. The applicant did not commit to this offer. At the funeral he did speak to Geoff again and because of something he said about the applicant’s daughter who was then six years old, the applicant became aggressive, very angry and a fight broke out. Geoff’s men were armed with weapons and the applicant sustained a knife injury to the shoulder. He did not hear from Geoff again after this incident. The applicant did not require hospitalisation and did not report this to the police. 10.It was about this time that he was told he should and could acquire a Togolese passport fraudulently because his Ghanaian passport may no longer be welcome in China where he was working at the time. There were political problems between Ghana and China at the time and he was worried that his Visa renewal would be refused. He then applied for a Togolese passport to leave as soon as possible and paid an agent US$1,200 to apply for a Togolese identity card and passport. This agent produced a birth certificate in another name to obtain the ID card and passport. The applicant also believed that if he was not in Ghana then his daughter would be safe. Fear of “George” 11.After the applicant finished his A-level examinations, between 2006 and 2009 he studied for a journalism degree and was a trainee journalist. He moved about the Country freely. When he was 18 or 19 years old, he met a man called George in an Internet cafe in Accra who offered him employment to assist him in his fraudulent scams. The applicant was paid to write emails and letters to US companies and order electronic goods with stolen credit card information. The applicant worked for him for over a year when George was about to scam a wealthy man in the UAE of about US$1 million. The applicant advised George not to go ahead with this scam but could not dissuade him. The applicant was concerned for the welfare of the victim and did not want to work for George any more. 12.The applicant double-crossed George and told the wealthy man in the UAE that the transaction was fraudulent. The applicant changed the email address and password to prevent George emailing him directly. George was furious and sent men to find the applicant but his uncle and neighbours intervened before they could take the applicant away. Several days later, the applicant met George and the applicant agreed to go to George’s house to provide him with the email and password. George had said if the applicant gave him the password and email then he would let him go. He did that but the applicant later accessed George’s email account and saw that the man from the UAE informed George that the applicant had double‑crossed him therefore he no longer wanted to do business with George. 13.The applicant was then arrested the following day along with three associates of George because of allegations of abduction, assault and the rape of a woman. George bailed out his three associates immediately whilst the applicant was held in police custody for several days. He was ill-treated; beaten by other detainees in full view of the police and given no medical treatment. His father could not afford any legal representation but he did insist the police bring the applicant before the court. The alleged victim refused a forensic examination so the judge found there to be no charges to be bought against the applicant. However, the applicant was ordered to pay some medical expenses that the victim had incurred and sign a bond promising to be of good behaviour. The applicant then refused after this episode to continue to work for George because he believed George had set him up. 14.When the applicant was about 19 he was studying at the University of Ghana in Accra when he met a man called Mohanni. After chatting to the applicant, Mohanni expressed an interest to meet the applicant’s friend Thomas who had previously shown the applicant a gun in his home. Mohanni then arranged to buy a gun from Thomas’s father who was in the military but he took the gun without making payment. Thomas’s father heard that the applicant had introduced Mohanni to Thomas. 15.The applicant was then arrested by the police and questioned about the whereabouts of the gun. He was told if they did not find the gun he would be detained by the police. The applicant then took the police to Mohanni’s home where he was arrested as well. Later the applicant saw George come to the station and bail out Mohanni. The applicant was then released because Mohanni told the police he had no involvement with a gun. Despite this, the applicant suspected George had something to do with his arrest as a revenge. He suspected that George wanted him to work for him again or perhaps he was set up because he knew too much about George’s illegal activities. 16.About a month after this arrest, the applicant was drinking with friends in a pub when some of George’s men came over and accused him of being a “snitch” and the confrontation escalated into a fight. After that, his friends told him to avoid Accra and George. 17.The applicant said he spent the next two years moving around staying with friends and relatives whilst he studied journalism and was also a trainee journalist. He did not encounter George or his men again. Working in China as an English teacher 18.The applicant’s father wanted him to work outside of Ghana and his friend suggested the applicant teach English in China. This friend arranged a Visa and air travel for him. The applicant lived in China from 2009 to 2015 working as an English teacher. As I have said above, he returned in 2015 when his father was seriously ill. He obtained a fraudulent Togolese passport in another name on 25 March 2015 to travel back to China. 19.When he returned in 2015, he met Geoff twice and there was a confrontation that turned into a fight at his father’s funeral in April. After this confrontation the applicant lived in the funeral home for about 10 days. The applicant then travelled back to China in September 2015 to continue working. He says he entered China using the Togolese passport to also avoid threats from Geoff and/or George and their men. In December 2015, the Chinese authorities cancelled the applicant’s Visa but he did not seek non-refoulement protection in China because he said they do not comply with the UN Convention. He then flew to Manila via Hong Kong but was refused landing by the Philippines Immigration. He was sent back to Hong Kong. He then sought protection in Hong Kong because he was at risk if he returned home to Ghana. 20.The applicant did not believe he could relocate internally in Ghana because both men, Geoff and George, were well organised and would be able to locate him anywhere in Ghana because he was a threat to them. The applicant was a threat because he had knowledge of their illegal activities. Apparently the applicant was also due to testify against George in court; the case was pending because of his threats to the applicant. At the same time, he was also concerned that both men would force him to work for them again. He did not believe that any authority such as the “Commission on Human Rights and Administrative Justice” which is a national human rights institution, an ombudsman and an anticorruption agency could help him if he was at risk in Ghana. 21.The applicant did not believe he could relocate to Togo because he was not a Togolese. He was a Ghanaian and not a Togolese; relocation in Togo was not a consideration. He was afraid of the Togolese government because he had acquired a Togolese passport by fraudulent means and because he was ethnically from the Ewe tribe which opposed the government. He was worried he would be arrested, prosecuted and detained in horrendous conditions that amounted to torture. He was also concerned that the Ghanaian government would punish him for that offence as well. 22.In the applicant’s non-refoulement claim form dated 16 February 2016 he indicated that he intended to submit documents that related to his identity, employment and previous involvement with George and Geoff. He would also submit documents to prove he was Ghanaian and worked in China as an English teacher for many years. He would also produce court documents to show that he was to testify against George in Ghana. Some of these documents were in his email account and some were in the court file in Ghana and he required time to obtain them. To date, the applicant has not submitted any of the above documents to any decision-maker despite being given much time. 23.The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;
The Director of Immigration 24.The Director assessed the applicant’s evidence and found on his own evidence that the level of risk of harm if he returned to either country, Ghana and/or Togo was low. The Director set out his reasons for this conclusion in detail in his decision. He found the low intensity and low frequency of past ill‑treatment indicated the small future risk of harm if refouled. He found that if George and/or his men had really wanted to kill the applicant, they had plenty of opportunity to before he left Ghana. That same finding applied to Geoff and his men. His other speculations involving the intentions of these two men were speculations without supporting evidence. 25.The applicant has expressed a fear of the government of both countries because of his former involvement with the two men and their illegal activities. He may face arrest and prosecution if he returned home. They will also prosecute him for his fraudulent passport application. However, the Director took into account the fact he had no problems with the Ghanaian government authorities when he worked for Geoff from 1995 to 2004. He was arrested twice by the Ghanaian police in about 2007 and was effectively acquitted in one case and released without charge in the other. When he left Ghana in 2009 he encountered no problems when passing through Immigration; the same applied when he returned to visit his sick father in February 2015. Clearly the Director found the applicant was not a target of the government or any authority. There is no interest in him and his speculation that he would be harmed or killed by government authorities is just that; the risk is not there. 26.The fact is he had knowingly applied for a Togo passport fraudulently. If the authorities did investigate and prosecute, they would be well within their rights to do that. If the applicant is a fugitive from justice as opposed to a Refugee who is a potential victim of injustice, then he is not entitled to protection. Unless there is evidence to indicate that the possible legal sanction is so disproportionate that it amounts to torture then fleeing a country in order to avoid arrest and/or a court case does not entitle an applicant to protection as legal sanction is excluded from torture. 27.In any event the Director found that State protection was available to the applicant if he was at risk from the Country of Origin Information (“COI”) and this would further lower or negate the level of risk even if Geoff and George had threatened him. The Director found COI to corroborate his assertion that the conditions in prisons in Ghana and Togo are very poor and he would not receive a fair trial. Prison conditions were described as harsh and sometimes life-threatening due to physical abuse, food shortages, overcrowding and inadequate sanitary conditions and medical care. 28.However, the Director also found COI to show that reforms were underway, corruption was being tackled in the police force and judiciary in Ghana. There was independent monitoring of prison conditions by NGOs who also helped prisoners and worked on the problems in prisons. The same applied in Togo, for example prisoners who had committed minor offences were released early to reduce overcrowding as recently as 2015. 29.The Director also found that internal relocation was a viable option without undue hardship in either country but particularly in Ghana as he was a Ghanaian citizen. Bearing in mind the size and population of the country the adjudicator did not believe that either Geoff or George would easily locate the applicant. In any event between 2006 and 2009 he had lived in Ghana, working and studying without encountering any problems from Geoff. There was no evidence Geoff was even looking for him. If he had been looking for the applicant, then it showed internal relocation was a viable option because Geoff did not come across the applicant again until 2015 and that was only because he openly and publicly visited his sick father and then attended his funeral. 30.The Director applied the law to the four applicable grounds and found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim. The adjudicator of the TCAB 31.The adjudicator of the TCAB treated the appeal/petition as a rehearing as required. It requires a fresh and independent decision of the claim by the adjudicator; X v TCAB HCAL143/2013, 4 September 2014, Zervos J §29. The adjudicator does not discharge an appellate role. It appears the hearing was adjourned three times from 30 June 2016 before the appeal was heard in full on 24 February 2017. The adjudicator correctly set out the law and key legal principles applicable to the four grounds in his decision as well as the applicant’s case and his evaluation of it. 32.The adjudicator also set out the COI he referred to and found relevant which led him to conclude that there was COI to corroborate the applicant’s assertions but reforms have been and are ongoing; enough for him to find that State protection was available to the applicant if he was at risk if refouled. Like the Director, he too concluded that internal relocation was a viable option without undue hardship for the applicant if it was necessary to consider. Evaluation of evidence 33.As far as the torture risk is concerned, the adjudicator considered the definition of torture under section 37U(1) of the Immigration Ordinance and found the applicant’s evidence relating to a perceived risk of torture by his enemies if refouled was based on bare assertions, assumptions and speculation. Any evidence relating to the perceived risk of torture by George and/or Geoff and their men would not constitute torture under this section because it must be inflicted by someone acting in the official capacity of the State which they are not. The adjudicator found no evidence of torture as defined had been inflicted by anyone in an official capacity or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. The adjudicator found the appeal failed under the torture risk. 34.The adjudicator found the appeal failed under BOR 3 because there was no evidence he would face a genuine and substantial future risk of being subjected to severe ill-treatment if refouled to Ghana. He did consider that ill-treatment must attain a minimum level of severity to fall within the scope of BOR 3. He did not find on the applicant’s own facts, ill-treatment that did attain that level. The BOR 3 risk claim failed. 35.The adjudicator found no evidence of any real and personal risk to his absolute and non-derogable rights including his right to life pursuant to BOR 2. That means he did not believe the applicant was at risk of capital punishment being inflicted by the government or faced harm from his government that would put his life at risk; his BOR 2 risk claim failed. 36.The adjudicator accepted that the applicant was outside of his country of nationality but found that his fear of ill‑treatment did not fall within the definition of persecution; his claim fell far short of and did not place him within the criteria of persecution according to the Refugee Convention. He did not have a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion. His persecution risk claim failed. 37.There was an application from the applicant’s legal representative to the TCAB to arrange video telephone conferencing or telephone communication during the appeal hearing which had to take into account the time difference between Hong Kong and Ghana so that the applicant could call/contact three witnesses in Ghana who would adduce evidence “in regard to his employment with and/or risk of harm arising from the perpetrators of harm (Geoff and George and their associates) in this case.” The adjudicator rejected it and in fact had rejected it in correspondence long before the actual hearing date. 38.The applicant’s legal representative had made the request in writing prior to the appeal hearing and the adjudicator had replied to the request and given directions on 29 June 2016, months before the actual hearing date. The applicant’s legal representatives were told that they must comply with Section 19 of schedule 1A of the Immigration Ordinance if they wished to adduce evidence that was not before the Immigration Department before the decision being appealed against was made. If new evidence is to be adduced, then there must be a notice to that effect which is served on the Director. The notice must indicate the nature of the evidence and explain why the evidence was not before the Immigration Department. The direction set out section 18 (2) and section 19 to be specific. 39.The adjudicator wrote that in the request made by legal representatives there was no explanation as to why the evidence was not before the Immigration Department earlier, no evidence how it relates to matters that have occurred after the decision being appealed against was made and therefore the TCAB was not in a position to decide if it was satisfied that there are exceptional circumstances to justify the consideration of the new evidence. 40.Despite very clear directions there was no written notice to present new evidence at the appeal from those instructed by the applicant. There was no explanation provided to the TCAB as required that would have enabled the TCAB to consider the admissibility of new evidence pursuant to section 18(2). 41.Despite those directions given in writing on 29 June 2016 there were several more repeat written requests for the TCAB to arrange video telephone conferencing or telephone access to witnesses in Ghana which made no reference to the directions or section 18 or section 19 of the Immigration Ordinance. It was as if that letter and those directions were repeatedly and deliberately ignored. Even when reminded in writing of those directions in that letter, the applicant’s legal representative continued to ignore the procedure to follow when new evidence is to be submitted. (See the correspondence at exhibits bundle, Volume 3, Tab 37 pages 812‑87) Leave to apply for judicial review 42.In the amended Form 86 and supporting affirmation there are five grounds for seeking leave;
43.In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187. In addition, the court will also rigourously examine and anxiously scrutinise the decision-making process and the reasons by which the decision-maker reached his decision; did it satisfy the enhanced Wednesbury test. The applicant’s claim and grounds need to show that his application is reasonably arguable and will enjoy a realistic prospect of success as proposed in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676. Ground 1 44.The adjudicator found no evidence of persecution from either Geoff or George. He found the applicant’s “fear of ill-treatment did not fall within the definition of persecution in that at best they were private disputes and were not on account of race, religion, nationality, membership of a social group or political opinion.” These are the five grounds set out in Article 1A (2) of the Refugee Convention. The applicant submits the adjudicator’s decision was irrational and wrong in law. For the applicant to prove persecution he has to also show he is “unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” 45.It was submitted that the TCAB should have analysed the applicant’s case on the basis that forced recruitment of the applicant as a child by a criminal gang is in itself considered persecutory treatment according to the UNHCR and international human rights standards. The evidence also demonstrates that the applicant is at further risk of persecution as a member of a particular social group, that is a person who is a former child recruit into a criminal gang and at risk of further human rights violations including threats and violence to force him to join/resume illegal gang activities that included human trafficking. 46.“Membership of a particular social group” is the ground with the least clarity or definition of the five grounds. For the purposes of the Refugee Convention, women, families, tribes, occupational groups and homosexuals have been recognised as constituting a particular social group. 47.The applicant argues that the adjudicator failed to consider that the applicant, as a child forcibly recruited to join a criminal gang amounted to persecution in and of itself. Forcible recruitment and/or child labour under the control of gangs would amount persecution. Someone who is pressured or coerced into a criminal gang through threat and/or violence and is prevented from leaving it through the use of threats and/or violence is at variance with a number of human rights. It is submitted therefore that forcible recruitment by violent groups would and should normally amount persecution, especially with respect to children. The UNHCR have recognised that the sale and trafficking of human beings, as well as forced or compulsory labour, would normally be considered as persecution. 48.The criticism is that the adjudicator failed to consider the applicant “a member of a particular social group” because of his personal background as a former member of a gang. It was submitted that the adjudicator failed to take into account whether the applicant’s refusal to resume or continue involvement in gang or criminal activity following George/Geoff may be considered a political opinion giving rise to a risk of persecution. His refusal to continue or resume his involvement with Geoff and/or George could be a betrayal sufficient to constitute a political opinion. 49.I have taken into account that for the applicant to succeed to prove a risk of persecution, he must establish he has a well-founded fear at the time his claim is being assessed; good grounds for fearing persecution in the future. He must establish that he has a subjective fear of persecution and also that the fear is well-founded in an objective sense. Evidence of past persecution is one of the effective means of showing that a fear of future persecution is objectively well-founded. If there is a pattern of long‑standing persecution, then there is a likelihood that the behaviour will continue. Severe injury or serious harm is not a necessary factual element to establish persecution. 50.First, this ground cannot apply to George, the applicant was at university when he was offered employment by George and he accepted the offer. There was no coercion or threats or forcible recruitment into a gang. Even when he knew the work involved fraud and scams he continued to work for George for a year for a financial gain. He later double-crossed George and the employer/employee relationship ended. The fact he was arrested the day after and again not long after that which he speculates was orchestrated by George as revenge does not put him and those circumstances within any of the grounds of the Refugee Convention. The adjudicator noted that there was no evidence of that revenge to support the applicant’s speculation. Neither does his fear of repercussions of giving evidence against George. This was a personal dispute. There was no evidence of persecution by George. 51.There are cases where forcible recruitment of children into gangs or military/militias/rebel forces have been considered child specific persecution, for example, violent gangs in Central America target children and have led to scores of unaccompanied children seeking asylum in the USA. They can be considered a member of a particular social group. The adjudicator is criticised for failing to consider the applicant in this category. However, in his evaluation of the evidence he does consider the applicant’s relationship with Geoff and what he considers relevant is the fact that the applicant no longer lived or worked for or was associated with Geoff from 2004 when he was about 16 years old. He did not come across Geoff again until early 2015 which is over a 10-year gap. He was not trying to escape from the gang when he applied for protection. 52.The adjudicator considered what happened when they met in 2015 and it may have ended in physical violence but the applicant says he was the one who became aggressive and physical. Some men associated with Geoff had invited the applicant to help Geoff with his business connected to mainland China as the applicant now spoke Mandarin. The applicant says they threatened him in a roundabout way by mentioning his daughter and how he should be around to protect her. What is important is that the applicant was no longer a child nor was he being forcibly recruited at that moment. This application was not made by a child fleeing forcible recruitment but a grown man who had had nothing to do with Geoff since 2004 or rather Geoff had had nothing to do with the applicant that could be defined as persecution. 53.The adjudicator made it very clear that he found no evidence of a well-founded fear of Geoff based on any of the five Refugee Convention grounds. He found the submissions far-fetched. He did not go on nor obviously feel it necessary to consider the fact that for the applicant to demonstrate persecution there had to be proof of an inability or unwillingness by the State to control private actors. The applicant and his father never made a police report therefore, there is no evidence of inaction by the police or government. The fact they feared police corruption or possible prosecution of the applicant for his participation in illegal activities which was why they made no reports, does not prove or establish the Ghanaian government’s inability to protect victims. 54.The adjudicator made much of the fact that from 2004, the applicant had been able to live, study and work without any interference, harassment or persecution from Geoff. He was not hiding from Geoff or trying to escape from the bondages of a gang but studying and working, travelling freely and independently within his own country and others; there is no well-founded fear demonstrated. 55.The applicant may have been forced to live with and work for Geoff when he was a young boy but bearing in mind how he has lived his life since 2004 and bearing in mind that he must establish he has a well‑founded fear at the time his claim is being assessed in 2017 then, the adjudicator’s rejection of the applicant’s submission he faced persecution by George and/or Geoff is reasonable. There is no merit in this ground. Ground 2 56.Ground 2 submits the adjudicator failed to properly assess the risk of CIDTP without giving any further particulars. The adjudicator has not spelt out a definition of CIDTP, cruel, inhuman, degrading treatment or punishment, but correctly set out the law and what the applicant must prove to invoke protection under BOR 3. He spelt out the two main requirements to be proved and acknowledged that the threshold is very high, and it generally involves actual bodily injury or intense physical or mental suffering. He made reference to two authorities Soering v the United Kingdom [1989] ECHR 14 (7 July 1989) §100 which discusses what can be inhuman and degrading treatment and Ireland v United Kingdom [1978] ECHR 1 (18 January 1978) §167. The adjudicator quotes from the second authority and repeats what can define inhuman and degrading treatment. 57.The adjudicator evaluated the applicant’s evidence and when he applied the two main requirements to the applicant’s own evidence he did not find that the ill-treatment he would face if refouled attains a minimum level of severity. He did not find evidence that the applicant faced a genuine and substantial risk of being subjected to such ill-treatment. That ill-treatment is a reference to torture or CIDTP referred to in BOR 3. I see no merit in the ground that the adjudicator failed to properly assess the risk of CIDTP. Ground 3 58.The applicant accuses the adjudicator of failing to investigate or take into account his risk of arbitrary deprivation of life contrary to BOR 2. BOR 2 contains two fundamental elements and that is a general obligation to protect the right to life by law and a prohibition of deprivation of life, delimited by a list of exceptions. This means there is a positive requirement of the State to ensure preventative measures are taken to protect citizens. 59.The applicant does not make it clear whether he relies on this ground because he believes he is at risk of capital punishment inflicted by the government or that he faces harm from the government that would put his life at risk. The applicant did submit information to the Director of Immigration before the Director rejected his BOR 2 risk claim on 25 January 2017 in a separate notice of further decision. The Director sets out the applicant’s submissions which was that the friend from Ghana he hoped could give evidence of the applicant’s employment by both Geoff and George has now gone missing. In addition, another potential witness was wary of giving evidence about the applicant’s background and involvement with Geoff and/or George because of his fear of repercussions; he would be putting his own life in danger by helping the applicant. 60.The Director found that the submissions did not establish any risk to his rights under BOR 2. The adjudicator came to the same conclusion and confirmed the decision of the Director. I see no fault in their decisions; there is no evidence of an omission by the State to protect the applicant’s right to life. The applicant was not, from his own facts putting forward a claim under this ground. I cannot see what would be relevant and connected to BOR 2. There is a criticism that the adjudicator ignored written submissions and the applicant’s statement of additional grounds sent by fax in November 2016. I was told the adjudicator was given copies of these documents during the hearing but made no reference to them in his decision. That does not mean he has failed to take them into account. There is no merit in this ground. Ground 4 61.In the fourth ground, the adjudicator is accused of failing to investigate and/or take into account and place appropriate weight on relevant COI. There are no particulars to support this ground or further this ground except a submission from counsel during the hearing that the adjudicator’s failing here related to ground 3 above and a failure to explain why he preferred some parts of the COI over other parts; therefore, failing to provide adequate reasons. 62.I note the adjudicator and the applicant makes much of the COI relating to Togo when the applicant himself confirmed he is not Togolese but Ghanaian. Surely the COI relating to State protection from the authorities of Ghana is what is relevant. The adjudicator sets out in paragraph 50 what COI relating to Ghana corroborates the applicant’s assertions and then in paragraph 51 sets out what COI he relied on to support his conclusion that reforms have been and are ongoing in Ghana and there was State protection for the applicant even if he returned as a failed asylum seeker. 63.I therefore reject the submission that there are unqualified assertions from the adjudicator in the face of COI which indicates otherwise which means his decision is Wednesbury unreasonable according to McWalters J (as he then was) in AM v Director of Immigration [2013] HKEC 1838, §105-107. I am satisfied it is clear why the adjudicator made such a finding. There is no merit in this ground. Ground 5 64.The fifth ground is a criticism that the adjudicator failed to investigate or take into account the availability of internal relocation options nor did he consider the evidence which indicated that internal relocation was not feasible for the applicant. Again, there are no particulars to support this ground. 65.In fact, the adjudicator did not need to go on to consider internal relocation in light of his findings and conclusions. It would appear that the adjudicator did not accept the applicant’s assertion (because there was no evidence) that his enemies he feared had countrywide power and influence or were countrywide terrors. If there was any risk it therefore would only apply to the applicant’s home as far as Geoff is concerned and the applicant’s university town as far as George is concerned. Therefore, his risks if any appear to be limited to specific and local areas. The adjudicator concluded that even if he refused to go back and work for and feared reprisal from Geoff or George, then according to the COI the Country was big enough and populated enough for him to relocate internally. His age, education, training and employment history meant it would not be unduly harsh for him to relocate to other areas in Ghana. He drew the same conclusion for Togo if the applicant was to live there. 66.The adjudicator considered the essential factors when considering internal relocation. I do not see how the applicant’s submission that internal relocation was not feasible in his particular circumstances can be made out especially, in light of the lack of particulars. There is no merit in this ground. Other submissions 67.Much is made of the fact he obtained a Togolese passport fraudulently and the consequences if he returned to Togo would amount to him suffering torture and requiring protection. There is no arrest warrant and no evidence of Togolese authorities investigating this fraudulent crime. Even if there was, it would be a legitimate investigation and prosecution. On his own admission, he wanted the passport to continue to work in China; not because he needed it to escape any of his enemies. 68.The submission that his inevitable detention, unfair trial and dire prison conditions would amount to torture is a tenuous stretch of imagination when there is no arrest warrant nor any evidence of any police investigating the applicant. There is no supporting evidence he is in danger of being detained. In any event, he has been arrested before, acquitted or released without charge in those cases. There is no evidence of ill‑treatment that would amount to torture whilst in detention on those occasions. 69.There is also a submission that the adjudicator failed to adhere to a high standard of fairness when he refused the repeated request to allow for facilitating witness testimony from Ghana during the appeal. This evidence would be new evidence and therefore should have been dealt with in the manner prescribed by the Ordinance. The TCAB gave the applicant ample time to comply with the relevant sections dealing with new evidence but the procedure was ignored. I can understand why this application was refused by the adjudicator. 70.I do note that the new evidence the applicant hoped to submit related to witnesses supporting his evidence “in regard to his employment with and/or risk of harm arising from the perpetrators of harm (Geoff and George and their associates) in this case.” This evidence would not have taken ground 1 any further. Also, the adjudicator essentially accepted what had happened to the applicant when he was young until he was about 16 living with Geoff and accepted how he came to be employed by George and how that employment came to an end. Conclusion 71.After a careful examination of the grounds and submissions, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to the high standard of fairness required. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. 72.None of the grounds put forward by the applicant were arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Chan & anor (2007) 10 HKCFAR 676 §14-17. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success and I refuse leave to apply for judicial review.
Ms Katherine Olley, instructed by Daly, Ho & Associates, for the Applicant |
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