AMINOU LOUKMANE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 624/2020

[2025] HKCFI 4148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 624 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Benin. By a Form 86 dated and filed on 14 April 2020 (“Form 86”), which was accompanied by a supporting Affidavit also dated and filed on 14 April 2020 (“Affidavit”), he sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 3 January 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application but did not appear at such. I have hence dealt with his application on the papers.

Background

3.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Benin, he would be harmed or killed by his friend, Chidi;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 28 May 2018 (“Director’s Decision”);

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 11 June 2018;

(4)  The TCAB/NRCPO issued a Notice of Hearing to the Applicant and sought to hold a hearing in relation to the Applicant’s non-refoulement claims on 3 July 2019, but the Applicant did not attend such;

(5)  The Applicant later attended the TCAB/NRCPO in-person and submitted a written explanation for his absence at the hearing (namely, that he was not well) and updated his address;

(6)  The TCAB/NRCPO set down another hearing on 31 October 2019 and served a Notice of Hearing on the Applicant’s new address. However, the Applicant failed to attend that hearing.

(7)  The TCAB/NRCPO followed the procedure in ss. 15(1) to (3) of Schedule 1A, Immigration Ordinance (CAP. 115) and, as it had not received any response in relation to such from the Applicant within the time limit, determined the appeal/petition despite the Applicant’s absence at the hearing and handed down the TCAB Decision on 3 January 2020, in which it found that the Applicant was not entitled to non-refoulement protection on any of the relevant grounds under the USM and confirmed the Director’s Decision.

Legal Principles

4.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

7.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

8.  I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and dismiss the application for leave to apply for judicial review. This is for the following reasons.

9.  Dealing, firstly, with the merits of the substantive application, there are no grounds set out in the Form 86 or the Affidavit. Rather, the latter only claims that the Applicant is “afraid to go back to [his] country and at the same time disagree with these order,” and asked the Court to “review” the TCAB Decision, the Director’s Decision, and his NCF. However, the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error.

10.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

12.  The TCAB Decision set out the Applicant’s procedural and immigration history, and the documents containing his claim (including COI referred to by the Director) (Paragraphs 1 to 6). It then detailed the basis of his claims contained in the NCF, and in two interviews, including how they had been assessed below with regard to topics such as the timing and nature of the events alleged, the source of risk, whether he had sought (or could seek) state protection, and (with reference to relevant COI) facts relevant to internal relocation (Paragraphs 7 to 28). This was followed by the contents of the Applicant’s notice of appeal/petition, and the manner in which the TCAB/NRCPO had approached the oral hearing and related matters in determining his appeal/petition (Paragraphs 29 to 38).

13.  The TCAB/NRCPO then explained that on the material it had not been satisfied in relation to critical aspects of the Applicant’s claims and had wanted to discuss these with him at the oral hearing. It gave as some examples (i) The general credibility of the Appellant’s claims (ii) The significant length of time since the claimed assault and the problems arose (iii) The significant length of time the Appellant spent in Benin after his problem with Chidi arose, and his delay in leaving Benin; and (iv) The possibility of relocation. These topics clearly arose from and were related to matters outlined earlier in the TCAB Decision[8] (as well as in the Director’s Decision), and were clearly salient to matters such as the underlying facts of the Applicant’s claim, and the risk of harm. There was then consideration of relevant principles such as the high standard of fairness and the approach to be taken in evaluating the risk of harm. Ultimately, the TCAB/NRCPO concluded that it was not satisfied and did not accept on the material before it that the Applicant left Benin and could not return for the reasons he had claimed, that the Applicant borrowed money from Chidi and had been unable to repay that money (and hence that he was threatened and assaulted as he did not repay the money and that Chidi had threatened to harm or kill him), that the Applicant left Benin in fear for his safety, that the Applicant feared returning to Benin for the reasons he had claimed, that anyone in Benin had any adverse interest in the Applicant, and that there was real risk Chidi or anyone else in Benin would harass, threaten, harm, or kill the Applicant on his return to Benin (Paragraphs 39 to 49).

14.  The decision-maker then assessed that the Applicant had not made out his non-refoulement claim on any of the four grounds, as there was no risk that Chidi or anyone else in Benin would harass, threaten, harm, or kill the Applicant on his being returned to Benin, or be subjected to torture or CIDTP, and as no Convention reason was engaged. Accordingly he found that the Applicant was not entitled to non-refoulement protection and confirmed the Director’s Decision (Paragraphs 50 to 76).

15.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding evidence, the risk of harm, which are all matters primarily within the province of the decision-making body, and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. An objective reader of the TCAB Decision would appreciate that, and why, the decision-maker had considered (with regard to the substantial issues) that the material before him was not sufficient to establish the underlying core facts of the Applicant’s claim and (in particular and in any event) the relevant risk of harm. The contents of the decision are also sufficient to enable the Applicant to consider the possibilities of administrative and judicial review (Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at §51; Melemoko Ndiala Saint Juste Seguy Lionel [2021] HKCA 609 at §5).

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

17.  Secondly, there is undue delay in this case as the leave application was filed some 11 days out of time. Despite this, there is neither a request for an extension of time to make the application in the Form 86, nor any explanation for the undue delay, even though from 9 March 2020 onward there were generally[9] special arrangements put in place to enable parties to file applications for leave to apply for judicial review (including non-refoulement claims) in the High Court Registry where the time limit for making the application provided by RHC O. 53 r. 4(1) would expire during GAP. With that said, given the other factors mentioned herein I would still reach the conclusion in Paragraph 8 above, even if I have somehow erred as to the exact length of, and/or the lack of a credibly valid explanation for, the delay.

18.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.

Conclusion

19.  In the circumstances, I have ordered that the application for leave to apply for judicial review be 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