KANTE YAYA v. TORTURE CLAIMS APPEAL BOARD

HCAL 83/2020

[2025] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 83 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “the decision of the Torture Claims Appeal Board dated 21 March 2017”.

2.  Extension of time to file the applicant’s application for leave to apply for judicial review be refused.

3.  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 8 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”), but it is not clear in respect of which decision the applicant wanted to seek relief, as he merely stated the words “Appeal the result from The Tribunal Under Section on 23 Dec 2019” in Form 86.

2.  At the oral hearing of the Leave Application on 18 March 2025, the applicant confirmed that the Leave Application is in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 21 March 2017 (“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/HCAL000083_2020_files/the_Board's_Decision.pdf

Amendments

3.  The applicant did not state any putative respondent and putative interested party in Form 86. Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent and “Director of Immigration” is added as the putative interested party. Also, the decision in respect of which relief is sought under the Leave Application is amended to the Board’s Decision.

Late application

4.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

5.  However, the applicant filed Form 86 only on 8 January 2020, which is more than 33 months from the date of the Board’s Decision. The applicant was therefore late for more than 30 months in making the Leave Application.

6.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

7.  At the oral hearing on 18 March 2025, the applicant explained that the Leave Application was filed late because the Immigration Department only asked him to wait, and he did not receive the Board’s Decision until 2020. He said that he moved out of his previous address in 2017. He only came to know the Board’s Decision in 2020 when the previous landlady passed him the letter from the Board.

8.  The length of delay is very substantial and the reason for the delay given by the applicant is not satisfactory. The applicant should have informed the Director of any change of address so that correspondence can be effectively communicated to him. As discussed below, there is also no merits of the intended judicial review. Thus, having considered the aforesaid criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.

9.  The Leave Application can be dismissed on the ground of being made out of time alone. However, this court will also proceed to consider the merits of the Leave Application.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared that his paternal uncle would kill him so that the applicant could not take back his father’s properties.

Discussion

12.  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).

13.  The applicant failed to identify any grounds for the intended judicial review. He merely stated in the supporting affirmation that he wanted his case to have a second consideration. Likewise, at the oral hearing on 18 March 2025, the applicant only asked for a second consideration of his case. Hence, the applicant raised no ground for the intended judicial review at all.

14.  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 [2018] HKCA 524).

15.  This court has noted that the Board did not consider BOR 2 Risk in the Board’s Decision. However, in Kulwinder Kaur v Director of Immigration [2022] HKCA 48, the Court of Appeal held that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”. This is the same situation here. As the Board had already found that there was no BOR 3 Risk in the Board’s Decision, there is no arguable ground for BOR 2 Risk either. Thus, there can be no reasonably arguable claim based on BOR 2 Risk.

16.  Moreover, the Board did consider BOR 2 Risk in its subsequent decision dated 16 September 2020 and found that the claim under this head could not succeed. Thus, BOR 2 Risk has also been dealt with, even though it was decided after the Leave Application was made.

17.  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 Unified Screening Mechanism, 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 error 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.

18.  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

19.  For reasons aforesaid and in the absence of any good reason for the very substantial delay in making the Leave Application, this court refuses to extend the time for making the Leave Application.

20.  The Leave Application is dismissed for being made out of time and also for devoid of merits.

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