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HCAL 74/2020
[2026] HKCFI 285
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 74 OF 2020
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BETWEEN
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Asare Arnold Javier by Nwachi Onyemaechi,
formerly known as Asare Ernest Owusu, his next friend |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the applicant’s name be amended to “Asare Arnold Javier by Nwachi Onyemaechi, formerly known as Asare Ernest Owusu, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 8 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 October 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000074_2020_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 20 May 2019, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant is a minor and represented by his father as his next friend in the Leave Application. His father was formerly known as “Asare Ernest Owusu”. At the oral hearing before this court on 11 December 2025, the applicant’s father informed this court that his name was formally changed to “Nwachi Onyemaechi” and produced a copy of his new Recognizance to show his new name.
4. Thus, the applicant’s name in his Form 86 should be amended to “Asare Arnold Javier by Nwachi Onyemaechi, formerly known as Asare Ernest Owusu, his next friend”.
5. The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and only the Director should be the putative interested party.
6. Thus, on this court’s own motion, the applicant’s name is amended as aforesaid, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
Withdrawal application made by the applicant’s mother
7. On 26 March 2025, the Director informed this Court that the applicant’s mother, Ms Saldana Noema Walohan, applied to withdraw the Leave Application on the applicant’s behalf by her letter dated 17 March 2025.
8. On 6 May 2025, this Court made an order that since the applicant was represented by his next friend, who was Mr Asare Ernest Owusu, not his mother, his mother could not withdraw the Leave Application on the applicant’s behalf. His mother’s application for withdrawal was therefore refused. The Director was informed of the same by this court on the following day.
The applicant’s case
9. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
10. In sum, the applicant claimed for non-refoulement protection because he might be harmed or killed by his maternal grandfather if he were to be refouled to the Philippines. His claim was derived from his mother’s claim for non-refoulement protection. His mother claimed that when she called her mother in July 2016, her father, ie the applicant’s maternal grandfather, grabbed the phone and threatened her that he would harm her and kill her children. The applicant’s mother also had the concern that the applicant would be separated from his father, ie his next friend in the Leave Application, if refouled to the Philippines. The applicant’s father is from Ghana and also a non-refoulement claimant in Hong Kong.
Legal representation of the applicant
11. As the applicant is a minor, the applicant’s father had been advised by this court through its letter dated 4 February 2025 of the requirements under Order 80 rule 2 of the Rules of the High Court that he must seek legal representation for the applicant so that the applicant’s specific interest may be fairly put before this court.
12. This court had also adjourned the oral hearing of the Leave Application on two occasions to enable the applicant’s father to apply for legal aid.
13. The applicant’s father applied for legal aid on behalf of the applicant only on 28 August 2025. The Director of Legal Aid refused the applicant’s legal aid application on 31 October 2025.
14. At the adjourned hearing before this court on 11 December 2025, the applicant’s father confirmed that he would not engage a private lawyer to represent the applicant after knowing that the applicant’s legal aid application was refused.
15. In view of the underlying objectives as stated in Order 1A, rule 1 of the Rules of the High Court, and the need to ensure that a case is to be dealt with expeditiously, this court was of the opinion that it should proceed to hear and determine the Leave Application despite the lack of legal representation for the applicant. This Court therefore treated the lack of legal representation as a mere irregularity and waived the same.
Oral hearing
16. At the adjourned hearing on 11 December 2025, when asked for the grounds of the intended judicial review, the applicant’s father said that the applicant was born in Hong Kong and did not commit any offence. The applicant’s father also said that given the problem and situation back in his hometown, it was difficult to relocate his family back to his country, ie Ghana. He added that he would like his children, including the applicant, to be raised in Hong Kong given the security and protection here. He wanted his children to grow up here until they were able to protect themselves, as the security situation in his country was ongoing and lots of people including Christians were killed. He confirmed that the applicant would face the same problem as his if he were to be refouled to Ghana and the applicant had no other problems because of his own situation. Nevertheless, the applicant’s father confirmed that his own non-refoulement claim had been denied.
Grounds for judicial review
17. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
18. The applicant’s Form 86 and the supporting affidavit dated 8 January 2020 were not made by himself but by his father as his next friend. The applicant’s father did not advance any specific ground for the applicant’s intended judicial review in Form 86 nor in the supporting affidavit. He merely stated in the supporting affidavit that he would like to reject and review the Board’s Decision as they disregarded his son’s dangerous situation. He further stated that the applicant’s case was in relation to his own case.
19. As aforesaid, the applicant’s father also asserted at the oral hearing that the applicant would face the same risk as his if returned to Ghana, and the applicant had no other problems.
Discussion
20. First of all, the applicant’s case was assessed by the Board in respect of his risks of returning to the Philippines as he was represented by his mother at that time. It was never the applicant’s case before the Board that he would face any risks if he were to return to Ghana.
21. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
22. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
23. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to re-assess the applicant’s non-refoulement claim based on the risks that he might face if he were to return to Ghana instead of the Philippines.
24. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).
25. In assessing the appeal by the applicant, the Board held an oral hearing on 4 September 2019. The applicant’s mother and representative at that time testified on behalf of the applicant before the Board.
26. As the adjudicator of the Board hearing the applicant’s case was the same adjudicator hearing his mother’s case, the Board indicated to his mother that it would consider her evidence given in her own hearing on 10 April 2018 as well as all of the claims and evidence in the applicant’s case. The Board asked whether there was any further information not already provided, or any further developments his mother thought might be relevant which she would like the Board to consider, but she replied that there was none.
27. It was his mother’s account that she wanted to go back to the Philippines, as she was tired of her situation, but she was concerned about her children’s welfare. She also told the Board that although her parents were angry and they might utter angry words, if they saw the grandchildren, everything would just disappear. If things happened otherwise, she could fight for her children. She added that the only thing that she could not bear was for her children to be separated from their father. She confirmed that both her own and her husband’s non-refoulement application had been refused.
28. Having regard to the fact that the applicant’s grandparents had already accepted his mother’s illegitimate son from her previous relationship into their household, the Board considered it highly unlikely that they would not similarly accept the applicant, who is a legitimate child of his mother.
29. In addition, having found on the balance that the applicant’s mother would be accepted back into her family, the Board rejected that there would be any real risk of the applicant suffering the problems associated with homelessness. The Board was also not satisfied that the effect of separating the applicant from his father, if returned to the Philippines, would enliven his non-refoulement protection. Hence, the Board was not satisfied that there was more than a remote prospect of the applicant experiencing any serious or significant harm if he was sent with his mother to the Philippines.
30. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board. The Board’s Decision is not unfair or unreasonable.
31. The applicant’s father stated in his affidavit dated 8 January 2020 that the applicant’s case is in relation to his own case. However, the applicant’s father’s own non-refoulement claim had already been denied. If the applicant was relying on the same grounds and the same facts of his father’s case in the Leave Application, there would simply be no prospect of success.
32. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
33. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
34. For reasons aforesaid, the Leave Application is dismissed.
Dated the 14th day of January 2026
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( Irene LEE)
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 14 January 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
14 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15959/19/5/99/F1069
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 189/19
(formerly RBCZ/10110/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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