Adams Osei Frimpong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3290/2019

[2025] HKCFI 3492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3290 of 2019

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 oral submissions by the Applicant 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.The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below

2.The applicant did not request a hearing. The Court will deal with his application on the papers.

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

The applicant                                                                                                                     

4.The applicant, aged 45, is a national of Ghana. He last arrived in Hong Kong on 12 August 2004 as a visitor. He overstayed since 20 August 2004. He had committed a number of offences and was convicted and sentenced to imprisonment by the court until September 2011. On 18 January 2012, he married in Hong Kong.  He applied for a dependent visa, but the Director refused his application. On 19 April 2018. He applied for torture claim protection and the Director rejected his application on 30 January 2014. He lodged a non-refoulement claim by written representation dated 7 February 2014 on all applicable risks as stated below except Torture risk.

5.According to the applicant, he believed in cult as a religion. He converted to Muslim in 2002. His uncle and other family members discovered his conversion. They were furious. Other villagers had the information too. They tried to attack him with ropes and knives. He managed to escape and hid himself in various places of his friends.  He finally came to Hong Kong for safety.

6.Details of his claim are set out at paragraph 27 of the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003290_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following applicable risks:

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

b.  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

c.  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”).

8.  By way of the Director’s Notice of Decision dated 16 July2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 20 May 2019, the Board conducted an oral hearing for his appeal. The Board had had an extensive enquiry into the facts of his case. [41]-[66]

10.The Board found that his evidence was not acceptable and it rejected that he had converted from the cult to Muslim; that he was threatened by the idolaters of his village; that he had hidden in various places to avoid them; and that he will be subjected to any real risk if he returns to his country. [66]-[68]

11.The Board therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 5 November 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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).

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

16.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.”

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

DISPOSITION

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

Dated the 2^nd day of September 2025

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