Abui Yawa Gbehode Marie Alias Abui Yawa Gbehode Alias Abui Yawa Marie v. Torture Claims Appeal Board

HCAL 81/2023

[2026] HKCFI 5884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 81 OF 2023

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

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 52-year-old national of the West African country Togo who arrived in Hong Kong on 27 November 2005 as a visitor with permission to remain as such up to 11 December 2005 when she did not depart and instead overstayed, and was arrested by police almost 6 years later on 28 September 2011 for overstaying and undertaking unauthorized employment, and for which she was convicted and sentenced to prison for 2 months. After her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Togo she would be harmed or killed by the Togolese authorities due to her adopted family’s past involvement in some coup d’état against the government, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born as an orphan and raised by her first adopted family in Lomé, Togo until 1988 when she was brought to France where she was adopted by the Lawson family headed by Francisco Lawson (“Captain Lawson”) who was a captain in the Togolese army but later together with his brother Merlaud who was a lieutenant colonel in the army and another brother Charle were subsequently involved in a failed coup d’etat against the Togo government in 1977, and thereafter they escaped to France, but for which she believed that they were still being wanted by the Togo government.

3.After her adoption by the Lawson family in France, the Applicant completed her education and thereafter worked in various jobs including domestic servant, playgroup tutor, supermarket employee, waitress and restaurant cook, and after the passing of Captain Lawson, the Applicant in 1996 returned to Togo and found a job working as a cook for the family of a French diplomat, during which she was on one occasion asked by a security guard of her employer whether she was related to the Lawson family, to which she denied but became concerned for her own safety.

4.Accordingly in 1997, she left Togo and moved to Ivory Coast where she stayed and worked in various jobs until 2005 when she decided to come to Hong Kong via Togo for her flight, but before she could board her flight, she was asked by a police officer at the airport in Togo whether she is a daughter of Captain Lawson and for information as to the whereabouts of his brothers, to which the Applicant again denied and was subsequently allowed to board her flight without any further incidence.

5.Upon arriving in Hong Kong on 27 November 2005, the Applicant became increasingly concerned by the incident at the Togo airport and became fearful of being arrested by the authorities upon her return to Togo, and so she overstayed in Hong Kong, and upon her eventual arrest by the police almost 6 years later on 28 September 2011, and upon her discharge from prison she raised her torture claim to the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 30 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 29 April 2019, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than Torture Risk including risk of her 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”).

7.In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in her claimed fear of being harmed by the Togo authorities upon her return to Togo that doubted the credibility of her claim, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong in November 2005 until almost 6 years later in September 2011 and only after her arrest by the police, that there is no reliable evidence of any adverse interests that the Togo government may have in her over her connection with the Lawson family other than her own groundless speculations and the fact that she was able to go in and out of the country without any real difficulty even if her alleged encounter with the police officer at the Togo airport were true, and that in any event reliable and objective Country of Origin Information (“COI”) show that in fact Captain Lawson in 1991 was able to return to Togo after being granted amnesty and lived out his life in Togo without any incident up to his death in 2003 that it is not accepted that the Togo authorities would still have any adverse interests in any member of the Lawson family including his brothers and certainly not the Applicant, and that Togo as a country has been politically stable for years without any real serious issues that would concern the Applicant as an individual that it is not accepted that she will face any risk of any of the proscribed harms upon her return to Togo.

8.On 14 May 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 24 September 2019 and 11 November 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1], the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from the Togo authorities over her connection with the Lawson family that caused her to leave the country to come to Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong in 2005 until almost 6 years later in 2011 and only after her arrest by the police, that in any event there is no reliable evidence of any adverse interests of the Togo authorities in her other than her own groundless suspicions and speculations and given the fact that she had been able to move in and out of the country without any problem, and that reliable and relevant COI show that Captain Lawson was free to return to Togo in 1991 and where he lived without any incident until his death in in 2003, that all other arrested participants in the 1977 coup have since been released by the government without harm, and that one of the daughters of the Lawson family namely Cina Lawson has been appointed to the Togo government as a minister that it is not accepted that the government would still have any adverse interests in anyone connected or involved in that failed coup that occurred some 50 years ago that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

10.On 19 January 2023, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just stated that she does not agree with the Adjudicator but without providing any reason why or putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her 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 her intended challenge of the Board’s decision

11.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.

12.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim as well as factual bases from reliable and relevant COI of the situations in Togo, and in the absence of any error of law or procedural unfairness in her 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 findings of the Board.

13.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.

14.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her application.

Dated the 22^nd day of October 2026

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