Ampofo Mosen Anti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2594/2019

[2025] HKCFI 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2594 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 February 2018 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision, refusing to re-open his claim (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 3 March 2025. He did not dispute the facts below.

The facts on which the Board dismissed the applicant’s appeal

3.The applicant, aged 34, is a national of Ghana.

4.He applied for torture claim by a written signification dated 6 February 2008. He failed to submit a completed Torture Claim Form (TCF) within 28 days. His claim was deemed to be withdrawn. His torture claim was re-opened on 10 July 2013 upon his duty lawyer’s request. He submitted the TCF.

5.On 8 October 2013, he requested to withdraw his torture claim. The Director informed him by letter dated 11 October 2013 that his torture claim had been withdrawn upon his request.

6.By letter dated 20 April 2016, he requested to re-open his non-refoulement claim. The Director requested him to provide sufficient evidence on or before 25 May 2016 the circumstances under section 37ZE (2) of the Immigration Ordinance (“the Ordinance”)^[1].

7.The applicant had submitted a letter, in which he said that he wanted to return home, so he applied to withdraw his claim. However, his family advised him not to return to Ghana because the case was not yet solved. He further stated his reasons for coming to Hong Kong. In Ghana, he played soccer for a team. The owner of another team called Nana Agyempong (“Nana”) paid him to play foul so that his team might be qualified. He declined but he was not able to return the money to Nana. His team won. He was assaulted by Nana and other 4 men. They used wooden stick, punches and kicks, and a machete. His upper right arm was wound by the machete. He picked up a hard object and hit Nana, who later died. His brother was abducted by Nana’s gang and detained for a week. He left Ghana for Hong Kong.

The Director’s Decision

8.The Director considered the applicant’s letter and held that the information or evidence did not comply with the statutory requirements and there was no special circumstances that it would be unjust not to re-open the claim.

9.For the reasons above, the Director refused to re-open his claim.

10.He appealed to the Board.

The Board’s Decision

11.The Board had considered the above facts and applied section 37ZE to the case.

12.The Board agreed with the Director’s Decision and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affidavit in support of his application, the applicant said that he could not go back and that he was having a civil case in court and he also had to receive medical treatment.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted a letter from the University of the People, showing that he may be admitted to study in the University; a copy of the judgment of District Court awarding him HK$831,000 as damages for his injuries from an object falling from above of a building; and a medical chit showing that he is receiving medical treatment for his injuries.

17.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.”

18.In my view, the Board had applied the relevant law to the situations of the applicant and had made its decisions according.

19.Those documents submitted do not constitute any valid reason in support of the applicant’s application. Therefore, the applicant has raised no valid ground to challenge the Board’s Decision.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.