|
HCAL 1188/2020
[2025] HKCFI 4003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1188 of 2020
| BETWEEN |
|
|
|
Kere Christian |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 26 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. However, he was absent at the hearing on 13 August 2025. I shall deal with his application on the papers.
The applicant
3. The applicant is a national of Burkina Faso. He is an illegal immigrant, having entered Hong Kong on 14 November 2015 as a visitor. He overstayed since 29 November 2015 and was arrested by police. He was referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his uncle because his uncle wanted to dispossess him of his piece of land and he refused.
4. According to the applicant, he suspected his uncle had killed his parents, his brother and his sister by employing assassins. His uncle had sent people to attack him with axes and knives. He was admitted to hospital for 2 weeks.
5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001188_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of Notice of Decision dated 30 November 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 16 December 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence before it, the Board found that he was not a witness of truth and there were inconsistencies in his evidence. It did not accept the core facts of his claim and concluded that he will not face any real risk of harm if he returns to his country. [31],[36],[40]-[41]
10. For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 15 June 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affidavit in support of his application, the applicant said that the Board did not take into consideration his evidence and misjudged his claim.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and 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.”
16. The applicant’s grounds under paragraph 12 are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 12th day of September 2025
| |
(Klein Tse)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 12/9/2025
Kere Christian
Applicant’s ref. no:
Nil.
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14855/18/12/212/BFA8
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4183/18 (formerly RBCZ 10283/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|