BALDE MOUCTAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 431 /2024, [2026] HKCA 293

On appeal from [2024] HKCFI 2377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 431 OF 2024

(ON APPEAL FROM HCAL NO 1763 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 4 October 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1]. The applicant filed a Notice of Appeal against the decision on 14 October 2024.

2.  The applicant is a Guinean national.  He last entered Hong Kong as a visitor on 20 June 2015 and subsequently overstayed.  He surrendered to the Immigration Department on 7 July 2015 and lodged his non-refoulement claim on 5 October 2015.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Rally of the Guinean People which is the ruling party in Guinea, as he was an active supporter of the Union des Forces Démocratiques de Guinée.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 23 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director found that the applicant’s account of events was incredible and implausible.  In view of the fact that the applicant had never been accused, charged, interrogated, arrested, detained or imprisoned in Guinea, the Director found there is no indication that the Guinean government had any adverse interest in the applicant.  The Director also held that the availability of state protection and internal relocation options in Guinea would further lower or negate any perceived risk.  

5.  The applicant filed an appeal against the Director’s decision with the Board and attended the hearing before the Board on 22 March 2019.  The Board found that the applicant’s evidence concerning the death of his father was not consistent with the independent information about the relevant events and held that the applicant has not told the truth about the circumstances surrounding the death of his father.  The Board also did not accept that the applicant was a political activist because of the deficiencies in his knowledge of political events and his own political activities.  The Board was not satisfied that the applicant would be at any risk of harm for the reasons claimed upon his return to Guinea.  Therefore, the Board decided that the applicant was not entitled to non-refoulement protection on any of the applicable grounds and dismissed the appeal on 20 May 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 25 June 2019 to seek leave to apply for judicial review against the decision of the Board.  He reiterated his problems in Guinea and the risk of harm upon his return without putting forward any specific grounds against the Board’s decision.

The judge’s decision

7.  The applicant was absent from the hearing scheduled on 19 August 2024 before DHCJ K W Lung.  The judge therefore dealt with the application on paper.  The judge found that the applicant failed to raise any valid reasons to challenge the Board’s decision and that he does not have any realistic prospect of success in the proposed judicial review.  Thus, the judge dismissed the leave application on 4 October 2024.

Grounds of appeal

8.  In the Notice of Appeal, the applicant reiterated his fear of being killed upon his return to his home country without stating any specific grounds against the judge’s decision.

9.  He submitted a written consent for the appeal to be disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 28 October 2024, he did not lodge any written submissions.

Legal principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

12.  The applicant has not identified any error in the judge’s decision.  He did not have any valid ground to challenge the judge’s decision. 

13.  The appeal is devoid of merit and is dismissed accordingly.