Carlos S Spencer Alias Yaw Adjei-mensah Alias Spencer Carlos Suman Alias Adjei-mensah Yaw v. Torture Claims Appeal Board
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HCAL 2766/2019 [2025] HKCFI 3997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2766 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a man in his 40s but with disputed identity and nationality who arrived in Hong Kong on 4 November 2003 as a visitor on a South African passport in the name of Adjei-Mensah Yaw and with date of birth of 8 September 1976, but when he tried to depart on 19 November 2003, he was intercepted by the Immigration Department when his South African passport was found to contain a counterfeit bio-date page and which was subsequently confirmed by the South African Consulate General as a fraudulent document, while a Ghanaian passport was also found hidden in his socks in the same name of Adjei-Mensah Yaw and same date of birth, and which was later confirmed by the Ghanaian authorities to be genuine but was denied by the Applicant to be his real name or nationality, of which he insisted to be Carlos Suman Spencer from South Africa. 2.However, upon enquires sought by the Immigration Department, the South African Consulate on 26 August 2004 confirmed of no record of any passport being issued in the name of Carlos S. Spencer, and hence it would not allow any person holding a passport under that name to return to South Africa. 3.As a result the Applicant was arrested and charged for using a false travel document and making false representations to an immigration officer, and was convicted on 22 November 2003 and sentenced to prison for 8 months, during which he made a request for asylum to UNHCR under the name of Adjei-Mensah Yaw from Ghana, but his request was rejected by UNHCR on 8 November 2004. 4.On 23 December 2004 the Consul of the Republic of Ghana agreed to the Immigration Department’s request to verify the Applicant’s claimed identity, but 3 months later informed that the Applicant refused to proceed with the identification process by claiming that he is not a Ghanaian, but later he changed his mind and did proceed to attend an interview conducted by the Minister of the Embassy of Ghana, and on 9 November 2005 the Ghanaian authorities confirmed that it would accept and receive the Applicant under the identity of Adjei‑Mensah-Yaw if deported from Hong Kong. 5.Before he could accordingly be deported to Ghana, the Applicant on 19 December 2005 raised a torture claim to the Immigration Department alleging that he is not a Ghanaian and that he feared of being prosecuted for using a false Ghanaian passport if deported there, and insisted that he is a South African by the name of Carlos Suman Spencer but that if returned to South Africa he would face a real and substantial risk of being harmed or killed by some illicit businessman in Johannesburg for having reported to the authorities of the businessman’s illegal activities including trading of firearms, and that he cannot go to Liberia either where his mother was born but he has no legal status and would become a stateless person there. After his torture claim was rejected by the Immigration Department, he then sought non-refoulement protection on the same bases, and was subsequently released on recognizance pending the determination of his non-refoulement claim. The Applicant’s Claimed Case 6.The Applicant was said to have been born as a Carlos Suman Spencer in February 1980 in the Durban Region of Umdloti Province of South Africa to a South African father and a Liberian mother. 7.When he was at the age of 4, his parents emigrated with the Applicant and his elder brother to Liberia where his father worked as an intelligence officer for the Liberian government. 8.When he was 8 or 9 years old, his father and brother were killed in an ambush by the rebels in insurgency against the Liberian government, and for safety reason his mother in 1989 brought the Applicant to Ghana in the care of his father’s friend when she later returned to Liberia by herself. 9.After his father’s friend passed away in 1992, the Applicant sought shelter in some local church, and in 1994 he made his way back to South Africa where he stayed in Tembisa with some man who provided him with food and shelter. 10.In 2001 he worked as a casual labourer doing errands and manual jobs such as painting and repairing houses, and that was when he met a businessman in Johannesburg by the name of Emanuel Boy Hleza also known as “The President” when he was hired to clean the man’s house and mown his lawns, during which the Applicant observed that The President was often surrounded by bodyguards and in the company of illicit characters, and suspected that he was involved in some illegitimate business and criminal activities such as dealing in drugs and firearms. 11.After having worked for The President for one year and became more familiar with each other, one day The President told the Applicant that he could help him to look for his mother in Ghana by providing him with a Ghanaian passport in the name of Adjei-Mensah Yaw, but as he was later unable to obtain any further information as to his mother’s whereabouts in Ghana, the Applicant changed his mind about going to Ghana, but nevertheless kept the Ghanaian passport given to him by The President. 12.Shortly thereafter The President advised him to go look for more lucrative jobs in South Korea, and to assist him to travel to South Korea, The President provided him with a South African passport in the name of Adjei-Mensah Yaw and advised him to use it for his travel to South Korea via Hong Kong. 13.Accordingly the Applicant on 4 November 2003 departed South Africa and arrived in Hong Kong on the following day under that South African passport provided by The President, but on 19 November 2003 when he tried to depart for South Korea, he was arrested by the Immigration Department for using that South African passport as a fraudulent document, and for which he was subsequently convicted and sentenced to prison for 8 months. 14.As a result the Applicant blamed The President for his predicament, and took revenge by writing 2 letters to the South African authorities exposing The President’s illegal activities in Johannesburg, and subsequently upon his discharge from prison when he was served with a removal order by the Immigration Department for deportation, he raised his torture claim under his claimed identity and nationality on the basis that he feared of being harmed or killed by The President if refouled to South Africa for having informed on his illegal activities to the South African authorities, and after his torture claim was rejected, he then sought non‑refoulement claim for protection on the same basis plus additional bases that he is stateless and thus cannot be refouled to Liberia even though it is his mother’s birthplace, nor should he be refouled to Ghana for fear of being prosecuted for using a false Ghanaian passport, and for which he completed a Supplementary Claim Form (“SCF”) on 14 January 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). Director’s Decision 15.By a Notice of Decision dated 27 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 16.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and formed the view that he is not a witness of truth who refused to disclose his true identity and had fabricated claims in relation to his purported problems in South Africa and with The President as being wholly incredible and unreliable, that he had lied to the Department on multiple occasions without any interest in genuinely co-operating or providing supporting information to establish his true identity that it is not accepted that his claims of being Carlos Suman Spencer from South African were true, that he is in fact a Ghanaian by the name of Adjei-Mensah Yaw as certified by the Embassy of the Republic of Ghana that henceforth even on the factual basis of his own case that he would not face any risk of being harmed or killed if refouled to Ghana while there is no legal basis for his claimed fear of being prosecuted for using a false Ghanaian passport as it has already been certified by the Ghanaian authorities as genuine, while his claimed risk of being harmed or killed by The President in South Africa is equally without basis as the South African Consulate has already confirmed that he would not be received or allowed to enter South Africa under his claimed identity, nor is it accepted that he has ever lived or worked in South Africa as alleged given his lack of even the most basic knowledge about that country, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if he is ever allowed to enter or return to South Africa, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in South Africa with a large population of 55 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his claimed home district in large cities where it would be difficult if not impossible for anyone to locate him. 17.On 9 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 May 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 21 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. The Board’s Decision 18.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence and concluded that he is not a witness of truth that no reliance can be placed on any of his claims or evidence, that it found that his true name is Adjei-Mensah Yaw, that he has Ghanaian nationality and a holder of a genuine Ghanaian passport as certified by the Ghanaian authorities which he had used to travel from Ghana to South Africa on 23 October 2003 and departed from Johannesburg on 3 November 2003 for Hong Kong when he was subsequently arrested for possession of a false South African passport and making false representations to an immigration officer, during which he also fabricated the account of being under the control of a person known as The President in South Africa to mislead the immigration officer, and of which the Board found no credible evidence of the existence of such a person, that in any event given that South Africa has declined to receive the Applicant from Hong Kong that there is no real possibility of him facing any risk of any form in South Africa, or for that matter in Liberia or Ghana on the factual basis of even his own case that he will not face any real risk of any form of harm if refouled to either countries, nor is there any real risk that he would be prosecuted for possessing or using a false passport if returned to Ghana given the latter’s confirmation that his Ghanaian passport is genuine and hence no risk of any prosecution in respect thereof that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds. Application for Judicial Review 19.On 20 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he wants to challenge the decision as it is unreasonable but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision. 20.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 21.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and submissions made on his behalf by his lawyer as well as relevant COI available before the Board and various documentary evidence issued by the relevant authorities as regard the Applicant’s identity and nationality, and upon which the Board was entitled to find against the Applicant and to reject the credibility of all of his claims. As such, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 22.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim from The President even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of South Africa, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 23.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 24.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 23rd 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 |
Cases cited in this judgment