SULLEY SALISU YUSIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2100/2020

[2025] HKCFI 5353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2100 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 Applicant being absent in open court;

Leave to apply for Judicial Review of the Board’s 2^nd Decision be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant was an illegal immigrant and had made non-refoulement claim to the Director of Immigration (“the Director”). By Notice of Decision (“the Director’s 1^st Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk.[1]

2.  The applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and by the Board’s Decision dated 2 November 2016 (“the Board’s 1^st Decision”) the Board dismissed the applicant’s appeal and affirmed the Director’s 1^st Decision. The applicant did not apply for leave for judicial review of the Board’s 1^st Decision, which has become final under section 23 of Schedule 1A of the Ordinance.

3.  The Director further considered the applicant’s claim on BOR 2 risk[2] and by Notice of Further Decision, refused his claim on BOR 2 risk (“the Director’s 2^nd Decision”). The applicant appealed to the Board. By Decision dated 9 July 2020 (“the Board’s 2^nd Decision”), the Board dismissed his appeal and affirmed the Director’s 2^nd Decision.

4.  The applicant filed Form 86 on 21 October 2024 to apply for leave to apply for judicial review of the Board’s 2^nd Decision.

5.  The applicant has not raised any specific reason to challenge the Board’s 2^nd Decision.

6.  Bearing in mind higher standards of fairness as stipulated by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, C.J. Li, Mr Justice Bokhary PJ, Mr Jistice Chan PJ, Mr Ribeiro PJ and Lord Millet NPJ, 8 June 2004, I have reviewed the Board’s 2^nd Decision.

7.  The applicant’s notice of appeal to the Board was over 5 months’ late.

8.  The Board did not hold an oral hearing for the applicant. The Board had considered the statutory requirements under section 37ZT of the Immigration Ordinance (“the Ordinance”). See the Board’s 2^nd Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002100_2020_files/the_Board's_Decision.pdf.

9.  The Board did not accept the applicant’s explanation for his delay.

10.  The Board had also considered the applicant’s case on other applicable risks as set out in the Board’s 1^st Decision.

11.  The Board found that there was no evidence in support of the applicant’s claim on BOR 2 risk.

12.  Since the applicant had failed in his claim on BOR 3 claim, he has no arguable case for his claim on BOR 2 risk as held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

13.  I dismiss the applicant’s application.

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