KOUAKOUVI AHLONKO SEYRAM KODJO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 58/2022

[2026] HKCFI 2237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 58 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/　Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 14 January 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 31 December 2021 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 23 February 2018 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing.  Subsequent to the hearing, it has come to my attention that the Notice of Hearing issued by post was returned to the High Court.  I should mention that it is the Applicant who has failed to discharge his duty to provide and update the Court an address to which correspondence or notice can come to his attention in a timely manner.[2]  In any case, he was successfully contacted over the telephone by court staff and informed on the date, time and place of the hearing.  I have also considered the merits of the Leave Application based on the materials available before me. [3]

Discussion

4.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[4]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  As matter stands, the Applicant has failed to identify any valid or effective public law grounds.[5]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success. [6]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[7]

8.  The Board was acutely aware that the Applicant had insisted he was not fit to engage in any discussion or assessment of his claim by reason of his alleged psychiatric condition i.e. he suffered from PTSD.  The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and the latest available psychiatric opinions (i.e. the HA report stating he had no cognitive incapacity and was fit to undergoing the non-refoulement screening process and Dr Borwein’s report and latest letter stating that the Applicant suffered from anxiety and post-traumatic stress syndrome).  The Applicant provided virtually no detail about his claims that he would be subjected to torture and persecution from his family, the army and the police, if he were to return to Togo as a result of his decision to convert to Christianity as he claimed he was so badly affected by PTSD.

9.  The Board was well aware of the conflict in the evidence as to the extent of any mental health issues suffered by the Applicant.  The Board rightly took into account that the Applicant had been afforded every opportunity to provide update evidence as to his mental health but he simply failed to attend the medical examinations arranged for him without any acceptable reason.  It follows that the Board was entitled to reject the factual basis of his claims entirely because he had failed to provide consistent and detailed statements about them and the Board did not accept that his failure to do so was due to the state of his mental health.  The Board also gave reasons for rejecting the implied submission that a more recent letter from Dr Borwein asserting the Applicant continued to suffer from PTSD should be accorded more weight as it was more recent.

10.  In any event, the Board did and was entitled to find that there was no evidence that conflict between Christians and animists or Vodun practitioners is a problem in Togo.  It follows that the Board was entitled to conclude there were no substantial grounds for finding that there was a real risk the Applicant would be subjected to torture, ill-treatment or persecution.

11.  Second, there is simply nothing to indicate the Board had failed to take into account any relevant matters.  The Board was quite simply entitled to come to the conclusions it did.

12.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

13.  Accordingly, I dismiss the Leave 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