TRAORE ISSA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1250/2020

[2025] HKCFI 3473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1250 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party;

2.  Extension of time to file the application for leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 22 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 7 July 2017 (the “Board’s Decision”).

2.  To ensure that the parties are appropriately named and that the Director of Immigration (the “Director”) be added as a proposed interested party as per usual practice, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 24 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the basis of the Applicant’s claim is that he would be persecuted as Christians by the Muslim majority in Mali as they are intolerant of Christians.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 7 October 2017. However, the Form 86 was filed late for about 32 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

7.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, Litton NPJ emphasised at 693B to C that where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”.

8.  On any view, a delay of about 32 months is extraordinarily serious and inordinate. No explanation whatsoever has been made in the Applicant’s Form 86 or supporting affirmation. At the Hearing, the Applicant requested me to allow his late filing. He claimed that he did not receive the Board’s Decision and he was only told about the Board’s Decision when he made his regular reporting to the Immigration Department pursuant to the terms of his Recognizance in June 2020. I am not able accept his explanation. The Board’s Decision was issued on 7 July 2017. The Applicant confirmed with that he had been making regular reports to the Immigration Department in 2018 to 2019. It is difficult to see how he would not have been informed earlier of the Board’s Decision even I assume in his favour that he did not receive it.

9.  On account of the very substantial delay and the lack of proper explanation, I would have refused to grant any time extension. For completeness, I will also consider the merits of the Leave Application below.

Merits

10.  It is trite law that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

11.  In the Form 86 and the accompanying supporting affirmation, the Applicant did not advanced any grounds in support of the Leave Application. The Applicant did not provide any particulars or specifics as to how the Board is said to have erred, 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.

12.  Having rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board was entitled to reject the Applicant’s factual account (§§28-41), given that the Applicant had never suffered any material ill-treatment in Mali. Having regard to relevant Country of Origin information, there was plainly no real risk of persecution of Christians by Muslims in Mali (at §46).

13.  At the Hearing, the Applicant added that he has since raised a family in Hong Kong and that his wife and children are Hong Kong permanent residents. This does not assist the Applicant’s case. A family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at §92(7) and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§57, 65 and 69; Re Purisima Aida P [2022] HKCA 637 at §15.

14.  Hence, the Leave Application is in any event unmeritorious with no prospect of success.

Conclusion

15.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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