Bah Mohamed Bachir v Torture Claims Appeal Board

Bah Mohamed Bachir v Torture Claims Appeal Board

 Summarized by Wong Jiht  (Associate)

Background 

The applicant is a national of Ghana, who sought judicial review of the decisions of the Director of Immigration (the “Director”) and the Torture Claims Appeal Board (the “Board”) concerning his non-refoulement protection claim. In the Court of First Instance, the judge refused to grant leave to judicial review. As a result, an appeal was brought by the applicant against the decision.  

Court of Appeal 

The applicant advanced, in his skeleton argument, the following grounds of appeal: 

1. The judge failed to consider the fact that he is still on the watch list and in danger if he is to return to Ghana. 

1. The police in Ghana is incapable of safeguarding him from harassments by vigilante groups targeting individuals on the watch list. 

1. There have been mob attacks against people who have been suspected to be associated with homosexuality or gay and his case has been associated with homosexuality by his stepmother and her children to eliminate him to deprive him of his share in his father’s estate.  

1. His attacker who made him flee to Hong Kong has been recruited into vigilante groups which he believes have “overpowered” the Ghana police.  

In his application, the applicant also attached 11 pages of new evidence to his submissions which concerned how the police and the courts dealt with LGBT people and sexual crimes in Ghana.  

Issue 1: Admissibility of the New Evidence  

The applicant, in advancing additional evidence, did not apply for leave to adduce further evidence. While the Court of Appeal has the power to receive further evidence according to Order 59 of the Rule 10(2) of the High Court, such power shall only be exercised on special grounds. The further evidence adduced by the applicant was deemed insufficient for establishing his case for two reasons: (1) the articles submitted by the applicant is irrelevant to the applicant’s case; (2) the evidence adduced could not show that he had been arrested or ill-treated by the Ghana police.  

Issue 2: Role of the Court in Non-refoulement Cases 

Referring to the case of Nupur Mst v Director of Immigration [2018] HKCA 524, the court emphasized that the role of the court in a non-refoulment case is not to usurp the roles of the Board and the Director as the primary decision-makers. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decisions of the Board. When dealing with an appeal, the Court of Appeal would only reverse the decision of the judge if it can be shown that the judge had made errors of law or had failed to consider relevant matters placed before the court. In this appeal, the court held that there is no error of law or procedure on the parts of the judge or the Board.  

Decision  

​The court concluded that as (1) no error of law or procedure had been found; and (2) the applicant failed to put forward any evidence to establish his case to disprove the factual basis which supports the Board’s decision, there is no merit in that applicant’s case. The appeal was therefore dismissed.