RE KANTE YAYA

CACV 230/2025, [2025] HKCA 987

On appeal from [2025] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 230 OF 2025

(ON APPEAL FROM HCAL NO. 83 OF 2020)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 10 April 2025 ([2025] HKCFI 1398) refusing to extend time for the applicant to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 21 March 2017, which dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 27 August 2015 rejecting his non-refoulement protection claim.

2.  The appeal was listed for hearing on 23 October 2025. The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 25 August 2025.

3.  The applicant did not lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated. On 20 October 2025, the applicant wrote to the court explaining that due to his poor understanding of the court’s letter and the need to find an interpreter, he did not lodge his written submission in time. He also attached a written submission and requested the court not to vacate the hearing.

4.  The applicant appeared in court on 23 October 2025. Having regard to the fact that he acts in person and he did eventually put in a written submission, albeit late, we had proceeded to hear the applicant’s appeal as initially scheduled.

The applicant’s claim

5.  The applicant is a national of Guinea and Nigeria, aged 46. He last entered Hong Kong on 30 January 2010 and was permitted to remain as a visitor until 13 February 2010. He overstayed and was arrested by the police on 11 June 2012. On 15 June 2012, he raised a torture claim based on fear of being harmed or killed by his paternal uncle (“Uncle Mohamed”) because he wanted to seize his father’s land and properties and also because the applicant refused to convert to Islam. His claim was set out in details in [5] of the Director’s decision dated 27 August 2015 and [3] to [17] of the Board’s decision dated 21 March 2017.

6.  According to the applicant, he was born in Guinea. His father was Guinean while his mother was a Nigerian. Both of them had passed away. Under the influence of his mother, the applicant’s father became a Christian, and so has the applicant. Uncle Mohamed, who is a devoted Muslim and a respected member of the Muslim community, has threatened to harm the applicant and his father due to their conversion to Christianity. He and his followers had ransacked his home, caused trouble to their family, attacked his father and also threatened to seize his land and properties. The applicant was told by his mother that his father was savagely killed by Uncle Mohamed. Uncle Mohamed had also demanded the applicant’s mother and the family to convert to Islam and made threats against them. To avoid him, the applicant’s mother brought the applicant and his sisters to Nigeria in 1980.

7.  In 2008, the applicant started a mobile phone business in Ikeja in Lagos. There were two occasions when strangers came to his home to look for him. On 30 January 2010, he arrived in Hong Kong for business. While he was in Hong Kong, he learnt from his mother that Uncle Mohamed had sent people to look for him, and that his sisters had died in a car accident but there was no evidence to implicate Uncle Mohamed. He lost contact with his mother in 2011. He came to learn later that she had passed away in 2011 but he was not told the cause of it. The applicant claims that Uncle Mohamed had taken away the land that belonged to his father and has continued to look for him.

The decisions of the Director and the Board

8.  By a decision dated 27 August 2015, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3]. By a further decision dated 24 May 2017, the Director decided against the applicant’s claim on the BOR 2 risk[4] ground.

9.  The applicant appealed both decisions to the Board. The appeal against the Director’s first decision was heard on 7 July 2016. As for the appeal against the Director’s second decision, the hearing took place on 2 and 8 July 2020. The applicant had attended all the hearings and had testified before the Board.

10.  The Board dismissed both appeals by two decisions given on 21 March 2017 and 16 September 2020 respectively.

11.  In the first decision, the Board found the applicant’s evidence lacking in credibility in view of the material discrepancies in the core aspects of his claim, particularly his account of the threats from Uncle Mohamed and the events preceding the death of his father ([22] to [33]). The Board found that the applicant had never been assaulted by Uncle Mohamed despite his claim that his uncle was able to locate him and had constantly threatened to kill him ([34]). The Board also noted that over the past 22 years the applicant had not returned to Guinea to check on his father’s properties, which reflects his lack of interest to repossess the property from his uncle ([41]). On the basis of the objective country of origin information (COI), the Board assessed that state protection is available to the applicant and that internal relocation to Guinea or Nigeria is a viable option ([42] to [55]). The Board thus concluded that the applicant had failed to establish a real risk pertinent to the torture risk, persecution and BOR 3 risk grounds.

12.  In the second decision, the Board identified more discrepancies in the applicant’s documentary evidence and oral testimony regarding his allegation of a heated encounter with Uncle Mohamed when he returned to Guinea twice in 2009 ([34] to [39]). The Board found his claim was unreliable and there was no evidence to indicate that Uncle Mohamed was still pursuing him and would kill him ([47]). The Board maintained its view having regard to the relevant COI that internal relocation to Guinea or Nigeria would further negate or lower the perceived risk ([50] to [57]). The Board concluded that the BOR 2 risk ground was not engaged and not made out ([58] to [60]).

The Judge’s decision

13.  On 8 January 2020, the applicant filed a Form 86 to apply for leave to judicial review. It did not indicate the decision against which relief was sought. Nor did it set out any ground for seeking relief. The applicant only stated in the supporting affidavit that he wanted to have a second consideration of his case.

14.  The Judge listed the application for an oral hearing on 18 March 2025. At the hearing, the applicant clarified that his leave application was in respect of the Board’s first decision dated 21 March 2017.

15.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. As the Board’s first decision was dated 21 March 2017, the applicant’s Form 86 was late by more than 30 months. He did not explain his delay in either the Form 86 or the affidavit. At the hearing before the Judge, the applicant explained that he had moved out of his previous address in 2017 and did not receive the Board’s decision.

16.  By a Form CALL-1 dated 10 April 2025, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed his leave application. He gave his reasons at [8], [9], [12] to [18] as follows:

“8. The length of delay is very substantial and the reason for the delay given by the applicant is not satisfactory. The applicant should have informed the Director of any change of address so that correspondence can be effectively communicated to him. As discussed below, there is also no merits of the intended judicial review. Thus, having considered the aforesaid criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.

9. The Leave Application can be dismissed on the ground of being made out of time alone. However, this court will also proceed to consider the merits of the Leave Application.”

“12. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13. The applicant failed to identify any grounds for the intended judicial review. He merely stated in the supporting affirmation that he wanted his case to have a second consideration. Likewise, at the oral hearing on 18 March 2025, the applicant only asked for a second consideration of his case. Hence, the applicant raised no ground for the intended judicial review at all.

14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15. This court has noted that the Board did not consider BOR 2 Risk in the Board’s Decision. However, in Kulwinder Kaur v Director of Immigration [2022] HKCA 48, the Court of Appeal held that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”. This is the same situation here. As the Board had already found that there was no BOR 3 Risk in the Board’s Decision, there is no arguable ground for BOR 2 Risk either. Thus, there can be no reasonably arguable claim based on BOR 2 Risk.

16. Moreover, the Board did consider BOR 2 Risk in its subsequent decision dated 16 September 2020 and found that the claim under this head could not succeed. Thus, BOR 2 Risk has also been dealt with, even though it was decided after the Leave Application was made.

17. Having rigorously examined the Board’s Decision 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 the applicable grounds under the Unified Screening Mechanism, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

18. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.”

17.  It would appear that in making the observations on the Board’s first decision in [15] of Form CALL-1, the Judge had overlooked that (i) the applicant had made separate appeals against the Director’s two decisions; (ii) the Board’s first decision only related to the appeal against the Director’s first decision; (iii) both the Director’s first decision and in turn the Board’s first decision did not concern the BOR 2 risk ground; and (iv) the applicant had confirmed at the oral hearing that the present Form 86 only covered the Board’s first decision such that consideration on the BOR 2 risk ground falls outside the scope of the intended judicial review.

This appeal

18.  By a notice of appeal dated 24 April 2025, the applicant appeals the Judge’s decision to this court. The grounds of appeal in the notice of appeal stated that the applicant disagreed with the decisions of the Board and the Director and would like to seek a fair judgement based on his fear.

19.  In his written submission, the applicant reiterated the factual basis of his claim. He asserted that Uncle Mohamed would not stop searching for him. He also doubted if the authority would protect him given his father’s murder was never investigated and that both Nigeria and Guinea are Muslim countries, and further contended that internal relocation was not viable but did not elaborate on it. In conclusion, the applicant said he disagreed with the decisions which he said were based entirely on information from Facebook.

20.  At the appeal hearing, the applicant indicated he had nothing to say orally.

Our reasons for judgment

21.  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. In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

22.  In light of the established legal principles set out above, we are of the view that the appeal has no merits. Our reasons are as follows:

(1)  The applicant was over 30 months late when he filed his Form 86. This is very serious delay. The applicant has to show that there are good reasons for the delay: AW v Director of Immigration and Anor (unreported) CACV 63 of 2015, 3 November 2015 at [27]. As the Judge held at [8] and [9] of the Form CALL-1, the delay was entirely due to the applicant’s change of address and his failure to notify the Immigration Department and the Board. There is in the circumstance no good justification for the very serious delay. The Judge was entitled to refuse to extend the time for to apply for judicial review and to refuse the applicant’s leave application.

(2)  It is well-established that an appeal to the Board and the Board’s decision supersede the decision of the Director, and the Board’s decision represents the final decision on the claim at the end of its processing: see Re Moshsin Ali [2018] HKCA 549 at [45]. It is therefore not open to the applicant to challenge the Director’s decisions by way of judicial review. Hence, insofar as the applicant seeks to appeal either or both of the Director’s decisions in this appeal, he is bound to fail.

(3)  As regards the applicant’s challenge against the Board’s decisions, as noted above, the present Form 86 only concerns the Board’s first decision and the applicant has not applied for leave to judicially review the Board’s second decision. It follows that the Board’s second decision and the BOR risk 2 ground do not arise for consideration in this appeal.

(4)  In respect of the complaint about the COI relied on by the Board, it is vague and not particularised. While it was said that the information came from Facebook, its accuracy has not been disputed or demonstrated to be incorrect. It has also not been shown how this fact would adversely affect the Board’s assessment of his claim.

(5)  As to the other matters raised in the written submission, it should be borne in mind that the Board had found the evidence and factual basis of the applicant’s claim lacking in credibility for the reasons given, including the material discrepancies in his account of threats from his uncle due to their religious differences. The Board also found relocation within Guinea or to Nigeria feasible and further concluded that the applicant has failed to establish the risk of harm as claimed. These are findings within the remit of the Board. The applicant has not identified any ground for the court to disturb them by way of judicial review. The Judge is correct in his view that the intended judicial review has no reasonable prospect of success and that leave should not be granted.

Order

23.  For the above reasons, this appeal is dismissed.