Bah Mohamed Bachir v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 556/2018

[2019] HKCA 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the judgment of the court):

1.This appeal is brought by the applicant, a national of Ghana, against the decision of Campbell-Moffat J on 12 November 2018 ([2018] HKCFI 1849). By her decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. His non‑refoulement claim was made on the basis that if he were to be returned to Ghana, he would be (i) harmed or killed by his stepmother Fatimah and her children because they wanted to deprive him of his share in his father’s estate, (ii) lynched by the angry villagers who considered him as an abominable culprit, and (iii) arrested and tortured by the police because Fatimah had framed a false rape case against him.

2.Earlier on, another division of the Court of Appeal[1] had dealt with this appeal on paper, on the basis that the applicant had failed to comply with an unless order to lodge a skeleton argument for the appeal within time and the hearing date was thereby vacated.  Judgment was handed down on 1 March 2019 dismissing the appeal ([2019] HKCA 254).  Upon discovering a clerical error in dispatching the wrong notice of hearing of the appeal to the applicant, that judgment was set aside by the Court of Appeal of its own motion on 11 March 2019, in the exercise of its power under Order 20 rule 11 of the Rules of the High Court ([2019] HKCA 280).

3.A new notice of hearing of the appeal scheduled for 16 April 2019 was issued to the applicant and he has lodged his skeleton argument within time prior to this hearing.

4.The background of the applicant, the Director’s decision, the Board’s decision, the intended judicial review and the judge’s decision have all been summarized in the earlier judgment of the Court of Appeal on 1 March 2019 and will not be repeated.

5.As has been noted in the earlier judgment, in the Notice of Appeal against the decision of Campbell-Moffat J, the applicant merely stated “Appeal again refused” in the space for setting out the grounds of appeal.

6.In his skeleton argument, the applicant advanced these matters as grounds of appeal:

(1)   The judge’s decision has ignored the fact that he is still on the watch list and therefore his life is still in danger if he is forced back to his country.

(2)   There are growing concerns regarding insecurity following the inability of the police in Ghana to handle some groups being formed to harass people who have been targeted and most of the members of the group that made the applicant flee to Hong Kong have been recruited into the vigilante group, the “Delta Force, Invisible Force”, and other affiliated groups across Ghana.

(3)   In recent years, there have been a number of mob attacks against people who have been suspected to be associated with homosexuality in Ghana.  His case has been “associated with homosexuality or gay” by his stepmother and her children as a way to eliminate him.  He has never been given the opportunity for oral hearing to demonstrate his fear following “a number of evidence” that has been published from various Ghana local newspapers.  The decision of the judge has relied on country of origin’s report from foreign researchers who only rely on selected topics which mostly highlight the positive side of the country.

(4)   His attackers continue to operate under those terrible vigilante groups that have “overpowered” the Ghana police.  Cases are selectively followed and arrests are made by the police without proper investigation.  There is therefore no guarantee that the police would be a solution to his problems.

7.The applicant also attached 11 pages of new evidence to his written submissions which appear to be some articles concerning LGBT people and the police in Ghana.

8.The applicant did not set out his grounds for seeking judicial review in the Form 86 he filed on 20 October 2017 or in his two supporting affirmationsfiled on 20 October 2017 and 23 April 2018.  He merely exhibited to his affirmations some articles related to the police and how the courts dealt with LGBT people and sexual crimes in Ghana.

New Evidence

9.The applicant did not take out a summons to apply for leave to adduce further evidence being those articles attached to his submissions.

10.Although the Court of Appeal has the power to receive further evidence, according to Order 59 rule of the Rule 10(2) of the High Court, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.  Further evidence is admissible on an appeal only where such evidence: (i) could not have been obtained at the trial with reasonable diligence; (ii) would or might, if believed, have a very important effect on the mind of the tribunal; and (iii) is of a sort which inherently is not improbable (the three conditionsin Ladd v Marshall [1954] 1 WLR 1489).

11.Out of the several articles submitted by the applicant, only the two articles related to the killing of seven Zongo youth[2] appeared to be published after the date of the judge’s decision on 12 November 2018[3]. However, the killing incident does not seem to be of much relevance to the applicant’s case.  The applicant has not adduced any evidence which shows that he had been arrested or ill‑treated by the police.  The further evidence is far from sufficient for establishing the applicant’s case for the purpose of obtaining leave to apply for judicial review.

12.The remaining articles[4], which relate to LGBT or homosexual people, do not fulfil the first two Ladd v Marshall conditions.  They could have been obtained and adduced before the judge with reasonable diligence.  More importantly, the applicant is not homosexual, according to his own case[5], and he had not been ill-treated or arrested for being suspected to be homosexual.

13.We refuse to give leave to the applicant to adduce such further evidence attached to his submissions.

Legal Principles

14.The relevant legal principles governing appeals in non‑refoulement cases have been set out by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows.

15.The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

16.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Discussion and disposition

17.The judge assessed that there is no error of law or procedure and that there is no procedural unfairness nor a failure to adhere to a high standard of fairness throughout in the decision of the Board, whereby it was found that the applicant’s evidence is inconsistent and implausible and his explanations were non-persuasive.  The Board considered that the applicant had fabricated his claims and gave cogent reasons for its decision:

(1)   The applicant claimed that after being accused of raping his stepmother, he left home wearing only underwear having just had a shower and bought a bus ticket with coins in his underwear.  The adjudicator found it implausible that he would have coins in his underwear..

(2)   He claimed in the Non‑refoulement Claim Form that it was a random stranger who recommended to him to hide in a village but he told the adjudicator it was in fact a neighbour that he knew.

(3)   His successful application to the Ghanaian authorities for a Ghanaian passport is inconsistent with his claim that he was the subject of a nationwide police hunt on rape charges.

(4)   The applicant sought to rely on unreliable email from one Mr J and this further undermines his credibility generally.

18.The applicant failed to put forward any evidence or viable arguments to refute the factual basis which supports the Board’s decision against him.  The judge is correct in deciding that there is no reasonably arguable basis upon which the applicant could challenge the Board’s decision in a judicial review.

19.There is no merit in any of the contentions put forward by the applicant.  We therefore dismiss the appeal.

The Applicant, unrepresented, acting in person