RE YEGBESSI ROMARIC BRUNO

CACV 184/2025, [2025] HKCA 854

On Appeal From [2025] HKCFI 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 184 OF 2025

(ON APPEAL FROM HCAL NO 2328 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 3 April 2025 ([2025] HKCFI 1287)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 29 July 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 29 August 2018 (“the Director’s Decision”)  refusing his non-refoulement claim.

2.  The applicant failed to attend the hearing of the appeal held on 2 September 2025.  Upon telephone inquiry by the court clerk, the applicant claimed that he was not aware of the hearing as he did not receive the Notice of Hearing dated 23 July 2025.  This court thus directed the applicant to state his reasons for absence in writing for the court’s consideration.  As of this date, no written correspondence has been received from the applicant.

3.  In the circumstances, the applicant has not provided any further explanation for not attending the hearing of the appeal.  In relation to the alleged explanation that he had not received the Notice of Hearing, we reject it as a bare assertion, since according to the court record, the Notice of Hearing was sent to the last known address of the applicant and was not returned undelivered by the Post Office.  We will therefore proceed to consider and determine his appeal on paper.

BACKGROUND

4.  The applicant is a national of Benin and Nigeria.[1]  He last entered Hong Kong on 11 June 2017 as a visitor and overstayed. He surrendered to the Immigration Department and made a non-refoulement claim on 14 July 2017, on the basis that, if refouled, he would be harmed or killed by his paternal uncle because of their land dispute.  Details of the applicant’s claim were summarised by the Judge at [3] - [8] of the Leave Decision.

5.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

6.  The applicant appealed the Director’s Decision to the Board on 10 September 2018.  The applicant attended an oral hearing before the Board on 4 March 2019.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] - [12] of the Leave Decision:

“9. The Applicant testified before the Board. The Board considered his case and his fear of his uncle are based on hearsay and suspicion only. It found his evidence regarding the land dispute was very vague and lacking in detail. He did not even know where the land was. His explanation is that he had no one to contact to obtain more information. The Board rejected his explanation as unpersuasive, as he should have had the information before he left Nigeria because it was necessary for him to form the conclusion that he had to leave Nigeria to remain safe. The quality of his evidence made it difficult for the Board to accept he had any genuine fear of his uncle.

10. The Board also found his evidence on crucial issues inconsistent. In respect of his father’s death, he told the Board that his father visited the hospital a couple of days before his death and he was told everything was clear. That is inconsistent with his evidence in his NCF that his father died after a long illness.

11. As to his fear of his uncle, he made a new allegation in his Notice of Appeal to the Board that his uncle was a very bad man and being a wealthy man in Africa, could do anything including harming others through juju, a kind of witchcraft. That allegation is inconsistent with his earlier evidence during the hearing that he had no knowledge of his uncle harming anyone else other than his suspicion regarding the car accident in which his brothers were killed.

12.  In view of his vague and inconsistent evidence as well as his non-persuasive explanations, the Board found the Applicant was not a credible witness. It rejected there is any land dispute between the Applicant and his uncle. While giving him the benefit of the doubt, it accepted his father died of an illness and his brothers died in a car accident, the Board rejected his allegation that his uncle was involved in any of their deaths via juju or any other means. In the circumstances, the Board did not consider the Applicant would face any real risk of proscribed harm if refouled to Benin or Nigeria. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.”

THE LEAVE DECISION

7.  On 13 August 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was given by the applicant in his Form 86 or supporting affidavit.

8.  The applicant attended an oral hearing before the Judge on 17 March 2025.[6] By the Leave Decision, the Judge refused to grant him leave to apply for judicial review.  His reasons were stated at [14] - [16] of the Leave Decision:

“14. At the hearing, after the above legal principles have been explained to the Applicant, he confirmed he had no knowledge of the law and left it to the Court to look for errors of law on his behalf. He only reiterated his danger returning to his home country. He confirmed he had no complaint about procedural unfairness or irrationality in the Decision.

15. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability. It accepted part of the Applicant’s evidence, such as his father’s death, but found him incredible as regards the core issues of his claim, such as that his uncle was responsible for his father’ and brothers’ death. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

16.  For the above reasons, the leave application is refused.”

THIS APPEAL

9.  In his Notice of Appeal filed on 9 April 2025, the applicant stated:

“… the grounds of this appeal are that the Applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  The applicant lodged his written submissions on 28 July 2025.  In those submissions, he cited various legal authorities in relation to the high standards of fairness and procedural fairness, but failed to elaborate on how they apply to his case.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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 decision maker’s decision afresh as if it were 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, County of Origin information (“COI”), 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 errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

13.  In our view, the applicant’s allegations have no substance.  The applicant’s complaints are all against the Board’s Decision and not the Leave Decision.  His complaints are also all general and vague without specific particulars or evidence in support.  General assertions of his fear if refouled also do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he fails to point out how the Judge erred in his decision.  His allegations therefore do not constitute proper grounds of appeal.

14.  In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  The Judge considered the allegations raised by the applicant and gave detailed reasons for his decision.  We see no basis to disturb the Leave Decision.

15.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.