BAKONE ERIC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 404/2024

[2026] HKCFI 4159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 404 OF 2024

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;

Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 4 March 2024 (“Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 4 December 2023 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 22 February 2023 in refusing the applicant’s non-refoulement protection claim. He named the Board as the proposed respondent and the Director as the interested party.

2.  The applicant did not request for a hearing and this application is to be dealt with by way of consideration of documents only.

BACKGROUND

3.  The applicant was born in Ghana but is a citizen and national of Burkinabe. He seeks non-refoulement protection on the basis that if he were returned to Burkina Faso, he would be harmed or killed by (i) the Burkinabe authorities; and (ii) the jihadists in terrorist attacks. His personal background, the relevant facts and relevant procedural history have been succinctly set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.  In the Form 86, the relief is sought “on grounds that my life is in danger if I go back now to Burkina Faso. This is my whrite (sic) to live. So I plead with you to reconsider your decision because Human Life Matter.” In his affidavit filed in support of the application, the applicant stated that “There is evidence that my country is not at peace and currently being disturb (sic) by Islamic terrorist and also. There are killings everyday (sic) in Burkina Faso and several millitary (sic) coup d’etat.”  Other than the above, the applicant did not specify any grounds for the review. In particular, the applicant did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision.

6.  This is a rather unusual case in that the allegations made by the applicant were serious and numerous. It took the Board considerable time and efforts to come up with its decision. Both the analysis of the law and the evidence were detailed and exhaustive. The Board’s Decision runs to 45 pages long.

7.  In the Board’s Decision, the Board has painstakingly set out the basis of the applicant’s claims for protection, including his personal background as stated in the Non-Refoulement Claim Form (“NCF”) [8-11]; the basis of his non-refoulement claims for protection under the NCF [12]; what he told the immigration officer at the Immigration Department’s interview in February 2023 [13-38]; his written statement attached to the appeal/petition to the Board [39]; and the evidence the applicant gave at the hearing before the Board on 6 July 2023 [40-97].

8.  The Board then went on a meticulous exercise of analysing and assessing the evidence and dealt with each and every allegation raised by the applicant in his appeal before making its finding on those issues [98-135]. Based on those findings, the Board concluded that the applicant would not be at risk of any harm if he is refouled to Burkina Faso. The Board further found that there is not a real risk that the applicant would face any harm should he be returned to Burkina Faso based on the claims he made [136].

9.  In my view, the Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [2, 137-142, 144-147, 149, 154-157], thoroughly analysed each, including the applicant’s credibility, before reaching the findings and conclusions that none of the non-refoulement claim based on the four applicable grounds were substantiated [143, 148, 150-153, 158].

10.  The Board concluded that the applicant is not entitled to non-refoulement protection in Hong Kong based on any of the applicable grounds under the USM [159].

11.  Despite rigorous examination and anxious scrutiny, I cannot find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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