PAUL KOFI alias ASARE PAUL KOFI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 438/2021

[2025] HKCFI 5943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 438 of 2021

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 the documents and oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 26 March 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 January 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 10 December 2018.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add, he said that he was living with a partner in Hong Kong with 3 children. Around 8 months ago (from the date of the hearing), she gave birth and was since mentally unstable. The newborn baby was still in the hospital. He also claimed that he had applied for legal aid and submitted documents purportedly in support of the same. However, having reviewed the said documents, it transpired, and the Applicant orally confirmed, that the legal aid application concerned a different case, and is not relevant to the present application.

Background

3.  The Applicant was born on 12 December 1968 in the Anambra State, Nigeria. His citizenship at birth was Nigerian, whereas his “current citizenship/nationality” was Ghanaian. In gist, he fears that upon his return to Nigeria (1) he will be harmed or killed by his uncles; (2) the Nigerian authorities will arrest and torture him because of his previous activities with the MASSOB, and subject him to CIDTP and persecution because of his past activities with the MASSOB in Nigeria and for his participation in MASSOB activities in Hong Kong; (3) he would not be able to obtain medicine in Nigeria, particularly in a Nigeria prison, and he could not survive, since in or about 2015 he discovered that he is HIV positive, and he needs to take medicine every day; and (4) he also fears being attacked by the Muslim people, including the Boko Haram and the Fulani Herdsmen who aim at Christians and Igbos, and he is a Christian and an Igbo. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink.[1] I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [5-36] and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism[2], the Applicant’s allegations were insufficient to make out any of the applicable grounds [37-89]. In particular, the TCAB found that the information the Applicant provided were conflicting and unreliable, and there were no or little risk of harm from his uncles [37-48], the Nigerian authorities [49-61], the Boko Haram and the Fulani Herdsmen [62-67] nor from being infected with HIV [68-72] upon returning to his home country, where state protection and internal relocation were also available on the basis of the available evidence.

9.  I have also carefully considered the Applicant’s oral submissions. The Applicant’s family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to his own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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