Husseini Yawuza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1226/2020

[2021] HKCFI 3342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1226 of 2020

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Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).  The application is late. I shall deal with this issue below.

2.He is now being detained in Tai Tam Gap Correctional Institution.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a citizen of Ghana.  He came to Hong Kong on 29 July 2009 illegally, the same day he was arrested by police.  He applied for torture claim protection.  His application was deemed to have been withdrawn because he failed to submit his torture claim form.  He was released on recognizance.  He committed crimes of possession of dangerous drug and inflicting grievous bodily harm and was convicted and sentenced to imprisonment.  He lodged non-refoulement claim by written signification of 19 May 2014.      

5.The applicant claimed that if refouled, he would be harmed or killed by the Group or the subject of the Group’s curse or hex because he failed to fulfil his commitment to sacrifice a member of his family to the Group in a spiritual ceremony.  He joined this Group through his neighour called Raymond.  It is a ritual of this Group that members will take turn to make sacrifice for the Group’s ceremony.  In late 2007, the Group demanded him to make sacrifice of one of his members of his family for its ceremony.  He was reluctant to do so.  He fled to Togo to live with his grandmother for about 5 months.  He returned to Ghana.  He found that the Group members were looking for him.  He was advised to leave Ghana.  He went to Cuba, returned to Ghana, and then to China.  Details of his story are set out in paragraph 12 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

7.By Notice of Decision dated 27 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by the Group upon refoulement was assessed to be low [25-33]; that state protection was available to him [34] and that internal relocation was an option open to him [36].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  On 10 July 2019, he appeared before the Board and answered inquiries from the Board with the assistance of an interpreter. 

9.By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal. The Board evaluated the applicant’s evidence against his oral testimony.  It accepted the Africans were superstitious.  However, it did not accept the applicant’s story.  It found that he had manufactured his claims for non-refoulement protection in Hong Kong [48].  The Board also did not accept that the Group’s curses had caused deaths to his family members and that such curses would have any effect on him [51-53].  As a result, the Board was not satisfied that there was a real risk or substantial or strong grounds for believing that he would suffer harm from the Group’s curse if he returned to Ghana [54].  On those factual bases, the Board dismissed his appeal on all risks he claimed.   

Application for leave to apply for judicial review

10.The applicant filed Form 86 dated 12 June 2020 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board’s Decision was unfair and unreasonable.  He might add more grounds in details later.

DISCUSSION

12.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay is, of course, serious.  However, I shall first consider the merits of the applicant’s case.

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and 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.He has submitted no valid ground to assist his application.  The Board has reject his evidence on the facts in support of his claim.  He therefore has no factual basis in support of his claim.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.I therefore refuse to extend time for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 16^th day of November 2021

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