YORO DANIEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 20/2022

[2026] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 20 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.   Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 9 June 2021 be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 7 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 9 June 2021 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 12 October 2020 (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 attended the oral hearing.  Apart from reiterating that he wants to remain in Hong Kong, he did not have anything substantive to add.

Discussion

4.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A.

5.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[2]

6.  First, the delay in question is almost 4 months. However, the Applicant has not applied for an extension of time nor provided any explanation for the delay in his affirmation.  When asked why the Leave Application was filed so late, he made a bare assertion that he only found out his non-refoulement claim was rejected in 2022.  I do not accept this explanation with no supporting document whatsoever.  In particular, when asked how did he find out his non-refoulement claim was rejected by the Board, he simply said there was a letter asking him to pay the fee of HK$1045[3] at the High Court.

7.  Second, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success.[4]

8.  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.[5]  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.[6]

9.  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.

10.  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]

11.  The Board was acutely aware of the Applicant’s claim that he would be harmed or even killed by his step-mother i.e. Mary and/or his step-brother(s) due to a land dispute in Ivory Coast.  It had assessed the material facts and evidence of the Applicant’s claim including the COI materials and found that even if he had an entitlement to ancestral land in Ivory Coast and he had encountered a problem in proving his inheritance, he had the ability to challenge or deal with Mary as he had the support of the village elders and the police had seemingly been prepared to arrest Mary in 2016.  In any case, the Board did and was entitled to find (1) the Applicant does not face a genuine and substantial risk of harm or ill-treatment from Mary or his step-brother i.e. Solomon in Ivory Coast; (2) the government of Ivory Coast promotes religious freedom and reasonable state protection will be available; and (3) relocation or return to Nigeria is also a viable option.

12.  There is simply nothing to indicate the Board had failed to take into account any relevant matters.  I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

13.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious.  Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent.  For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

14.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review.  I accordingly 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