CHIDOMERE CHRISTIAN OKECHUKWU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 447/2024, [2025] HKCA 694

On Appeal From [2024] HKCFI 2954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2024

(ON APPEAL FROM HCAL NO 2074 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Reuden Lai (“the Judge”) dated 22 October 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2017.

BACKGROUND

2.  The Applicant is a national of Burkina Faso. He last arrived in Hong Kong as a visitor on 30 April 2016, and had overstayed since 8 May 2016. On 23 May 2016, he surrendered himself to the Immigration Department. On 24 June 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle (Chidomere Jess) (“Uncle”) over a land dispute. He alleged that his Uncle was a spiritual wizard capable of using his spiritual power to attack or harm people. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 31 October 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 3 July 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§20-23 of the CALL-1 Form, as follows:

“[20] After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

[21] The Board noted that the Applicant’s case was centered around the alleged magical/spiritual power of Uncle. The Applicant asserted that Uncle killed his father with this power and that he would be located and killed with the same power upon his return. The Applicant claimed that there was no other explanation for his father’s death. The Board found that the Applicant’s claims were neither coherent nor plausible, and were unsupported by any generally known facts. The Board held that the Applicant offered no evidence to support his aforesaid important assertion and his claim was simply fanciful and incredible.

[22] Because the Board held that the Applicant was not at risk from Uncle, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return.

[23] The Board found that the Applicant had failed to establish his case on all applicable grounds under the [Unified Screening Mechanism (‘USM’)]. The Board affirmed the [Director’s] Decision and dismissed the Appeal.”

THE JUDGE’S DECISION

5.  On 22 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in his supporting affidavit of the same date.

6.  On 22 October 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[31] No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the [Director’s] Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters[.]

[32] Having rigorously examined the Board’s Decision and the [Director’s] Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

[33] The Board did not regard the Applicant’s claims to fear harm by Uncle credible. The Board found that the Applicant had not established that there were ‘substantial grounds’ which supported the conclusion that he faced a real risk of ill-treatment, torture or persecution as claimed or of his right to life being violated if he returned to his home country.

[34] It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

Conclusion

[35] In the premise and having considered the Board’s Decision and the [Director’s] Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”

7.  In passing, we note that the Applicant, by a letter dated 4 September 2024 and also at the hearing before the Judge on 26 September 2024, produced to the court below some news articles between 2022 and 2024 relating to the violent situation or terrorist activities in Burkina Faso in support of his intended judicial review. The Judge refused to admit the news articles as evidence in the proceedings below, holding that the second Ladd v Marshall condition was not satisfied and the news articles in any event did not assist the Applicant in his intended judicial review (see §§28-30 of the CALL-1 Form). The Judge took the view that the Ladd v Marshall conditions for admission of new evidence on appeal were applicable to judicial review proceedings on the basis of the judgment of the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213. It should be noted, however, that in Kwok Hay Kwong, the new evidence was proposed to be adduced in an appeal to the Court of Appeal from a judgment at first instance on an application for judicial review, and Tang VP (as he then was) held that the Ladd v Marshalls conditions were equally applicable in such an appeal, subject to a discretion to depart from them in exceptional circumstances. In the instant case, the Judge was dealing with an application for leave to apply for judicial review at first instance, and the Ladd v Marshall conditions are not applicable in such an application. Nevertheless, we see no basis to interfere with the Judge’s view that the news articles would not assist the Applicant in any event.

THIS APPEAL

8.  In his Notice of Appeal filed on 25 October 2024, the Applicant merely stated that he wanted to appeal.

9.  In his written submissions lodged on 5 March 2025, the Applicant made some generic submissions on general principles of law relating to non-refoulement claims, but failed to explain how they were applicable to his case.

10.  At the hearing of the appeal, the Applicant stated that he did not overstay in Hong Kong because he had applied to the Immigration Department for asylum prior to the expiry of the limit of stay granted to him. He said that there were a lot of terrorists in his home country and, as recognised by the United Nations, his country was not peaceful. He also said that he had not been working for 8 years while in Hong Kong.

DISCUSSION

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The matters raised in the Applicant’s written or oral submissions are all bare assertions, and cannot constitute valid grounds of appeal. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal has no merits, and is dismissed.