HILLER TONY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1069/2021

[2026] HKCFI 1953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1069 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 28 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 July 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001069_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 June 2018, which rejected the applicant’s non-refoulement claim, and confirmed the same.

Amendments

3.  In Form 86, the applicant named the “The Adjudicator of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party.

4.  In fact, the adjudicator made the Board’s Decision in her capacity as a member of the Board.  Thus, the Board should be named as the putative respondent.  The Director, instead of the Board, should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Ghana, he feared being harmed or killed by members of the Nimbreso community due to his involvement in illegal mining in the community.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 17 March 2026.

9.  At the hearing, this court asked the applicant to elaborate on the grounds for his intended judicial review that were stated in his written submission with the title “Grounds on which relief is Sought” annexed to his Form 86.  However, the applicant merely said he would rely on the grounds stated therein and he had nothing to add.

Grounds for judicial review

10.  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).

11.  In his written submission with the title “Grounds on which relief is Sought” annexed to Form 86, the applicant asserted some general grounds which were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations.  Likewise, the applicant did not explain or give any particulars as to how those general grounds were applicable to his own case.

12.  Nevertheless, as the applicant is relying on those grounds, this court will deal with them as discussed below.

Discussion

13.  In the applicant’s said written submission, he alleged that the respondent, ie the Board, was in breach of procedural unfairness and presented his allegations in 11 paragraphs.

14.  However, those 11 paragraphs only contained some general accusations against the Board without any particulars or any regard to his own situations.  They merely contained “key words” or standard accusations.

15.  The applicant complained that the Board’s Decision was “unreasonable or irrational in the public law sense”, the Board “had unlawfully fettered its discretion”, the Board “failed to meet the greater care and duty owed to a self-represented claimant”, the Board had “relied on source of news which is not officially recognized, or it is simply hearsay”, the Board “relied on some cases which are outdated”, and the Board “made the claimant disappointed”.  

16.  However, the applicant did not explain how or why the Board’s Decision was what he alleged.  He also failed to give details as to how the Board was in breach of procedural fairness in the determination of his claim, nor specify which pieces of country information were not officially recognized or were hearsay, and what cases that Board relied on were outdated.  In fact, this court notes from paragraph 5 of the Board’s Decision that the Board had actually updated the country of origin information (“COI”) regarding Ghana, the applicant’s home country, before finalizing its Decision.

17.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, such general allegations cannot help the applicant at all.

18.  In paragraph 7 of the said written submission, the applicant stated that “In dismissing the applicant’s appeal/petition, there is no indication that the Adjudicator interacted with the facts of the applicant’s claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the applicant’s right to life under BOR 2”.

19.  This court notes from the Board’s Decision that the Board had considered extensive COI in assessing the situation of mining and illegal mining in Ghana, and accepted that the applicant’s account that he and the Chinese miners for whom he worked were threatened and even shot at by local villagers in attacks in 2011 and 2012.  The applicant’s assertion that the Board did not conduct any analysis was completely unfounded.  Further, the Board assessed the applicant’s risks of returning to Ghana on all four available grounds under the USM, namely Persecution Risk[1], BOR 3 Risk[2], BOR 2 Risk[3]  and Torture Risk[4], and not only on BOR 2 Risk as alleged by the applicant.

20.  Thus, none of the accusations raised by the applicant in his written submission could establish any valid ground to challenge the Board’s Decision.

21.  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).

22.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

23.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 April 2019.  The applicant was present and was thus given the opportunity to present his case to the Board in person.

24.  As aforesaid, the Board accepted that the applicant and the Chinese miners for whom he worked were threatened and even shot at by local villagers in attacks in 2011 and 2012.

25.  However, the Board considered that given the lapse of time since the incidents, the risk of harm to the applicant at the hands of the Nimbreso villagers was low.  The applicant was not seriously harmed at the time of the incidents when, presumably, the villagers’ anger was at its highest, or before his departure from Ghana on 28 February 2013.

26.  Moreover, the Board was satisfied that the applicant would be able to obtain the assistance of the police upon his return to the country.  Although the Board acknowledged that the effectiveness of the police could vary, and corruption and bribery were widespread, the Board also found that in general the state was willing and able to provide effective protection.  Steps had also been taken to combat corruption and basic human rights were respected.

27.  Further, the Board was of the view that even if the applicant were to be the subject of interest to villagers from Nimbreso if he returned to his home in Accra and police assistance was not forthcoming, he would be able to safely relocate elsewhere in Ghana.

28.  The Board found that the Ghanaian Constitution provided for freedom of internal movement.  The applicant was well-educated and spoke three languages and had a varied work history.  The Board found no reason to believe that the applicant would not be able to obtain employment and sustain his living if he relocated to Kumasi or Sekondi Takoradi if he was unable to return to Accra.  There was no information which would indicate that the villagers in question had the influence or resources to locate the applicant wherever he might reside in Ghana.  The Board found that any risk that the Nimbreso villagers would pursue the applicant to other locations in Ghana to be extremely low.

29.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.  The alleged danger that the applicant faced had been duly assessed but rejected by the Board.

30.  For the sake of completeness, this court finds that the Board’s remark in paragraph 43 of the Board’s Decision that the Board was of the view that the harm suffered by the applicant in the past did not attain the minimum level of severity required for international protection could be unreasonable or even irrational, especially given its acceptance of the applicant’s account that the applicant and the Chinese miners for whom he worked were threatened and even shot at by local villagers in attacks in 2011 and 2012.  However, the Board’s findings on the availability of state protection and the viability of internal relocation for the applicant are not flawed.

31.  As held by the Court of Appeal in TK v Michael C Jenkins, Esq (21/11/2012, CACV286/2011), the court was right to uphold the Board’s decision in rejecting the applicant’s claim when internal relocation was safe and reasonable.  The burden of proof on the question of internal relocation lies with the applicant.  

32.  In the Leave Application, it is plain that the applicant’s assertion that he could not live elsewhere in Ghana as the villagers would locate him had been addressed by the Board.

33.  Thus, there is no basis for interfering with the Board’s Decision even after subjecting it to rigorous examination and anxious scrutiny.  The Board had made a finding that it would not be unduly harsh for the applicant to relocate internally to avoid the Nimbreso villagers.  The applicant did not produce any concrete evidence to support his assertion that the villagers would locate him elsewhere in Ghana.

34.  Even though there could be irrationality on the Board’s finding on the severity of harm that was inflicted upon the applicant in the past, the Board’s Decision on internal relocation was still sound.  The Board’s Decision that the applicant was not entitled to non-refoulement protection on the ground of internal relocation and also on the availability of state protection to the applicant cannot be flawed.

35.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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.

Conclusion

36.  For reasons aforesaid, the Leave Application is dismissed.

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