KOUADIO KOUAME MOISE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2098/2019

[2025] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2098 of 2019

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 be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr. Kouadio Kouame Moise (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 20 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Ivorian.  His background and the particulars and procedural history of the Claim are set out in the Board’s Decision.

3.  The Applicant arrived in Hong Kong on 5 February 2017 and was given permission to enter and remain as a visitor for 2 days.  However, he did not depart as required and overstayed in Hong Kong until he surrendered himself to the Immigration Department on 13 April 2017 and made the Claim. 

4.  The Applicant claimed that his paternal uncle (“Uncle”) would harm or killed him if he returned to the Republic of Cote d’Ivoire (“Ivory Coast”).  This was because Uncle wanted to take over the properties (including various plots of land) inherited by the Applicant from his father, who in turn inherited the same from the Applicant’s grandfather (“Dispute”).

5.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

7.  On 23 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and the Board’s Decision.  The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”).  In the Form 86, the Applicant named the Board and the Director as the proposed respondents and interested parties.

Legal principles applicable to judicial review

8.  In a judicial review, the court does not step into the shoes of the decision makers.

9.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] 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 the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

10.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

11.  In the Form 86, the Applicant did not state any ground for his intended judicial review.

12.  In the Supporting Affidavit, the Applicant only stated that:

“(1) My Uncle in Côte d'Ivoire would kill me through witch-hunt.

(2) Land dispute in Côte d'Ivoire had caused so many lives.

(3) Authorities are not involved in African land.”

13.  The Applicant then produced the DOI Decision and the Board’s Decision as exhibits to the Supporting Affidavit.

14.  By a letter dated 16 October 2024 (“Written Submissions”), the Applicant reiterated his claim that Uncle was after his life because of the Dispute.  He alleged that Uncle would use magic power to kill or harm him to take his family land if he returned to Ivory Coast.  He said that Uncle had killed his aunt through sickness and poison.  He claimed that Uncle had wide network to discover him wherever he might go or stay in Ivory Coast and the authority of Ivory Coast could not protect him because of their corrupted judiciary.  He could not relocate to any other parts of the country due to the insecurity or political disability in the country.

15.  The Applicant did not attend the court hearing scheduled for 23 January 2025 (“Court Hearing”) despite a notice of hearing dated 31 December 2024 having been sent to him at his address stated in the Written Submissions and not being returned.  I decided to deal with this application according to papers already placed before the court.

16.  The Applicant has named the Director as one of the proposed respondents and exhibited the DOI Decision to the Supporting Affidavit.  As the Applicant had already utilized the channel of appealing the DOI Decision to the Board and the Board had treated the appeal/petition as a de novo hearing or rehearing.  There is no room to judicial review the DOI Decision. (Re: Saqlain Muhammad [2018] HKCFI 409 at §6)  The Applicant may not have the second bite of the cherry to challenge the DOI Decision by way of judicial review.  I dismiss his application for leave for judicial review of the DOI Decision. 

17.  The Applicant simply repeated his claims in the Supporting Affidavit and the Written Submissions without supporting documents.  They were bare assertions.

18.  The Applicant failed to attend the hearing before the Board scheduled for 6 May 2019 and the Board decided to hear and determine the Applicant’s appeal in his absence pursuant to sub-clause 15(1) of Schedule 1A of the Ordinance.

19.  The Board observed that the Applicant’s claims were lacking in detail in significant respects and that he did not provide detailed information regarding the particular allegations he had made.  He also had not provided any documentary evidence to support the claims he made.

20.  At §§25-29 of the Board’s Decision, the Board set out various allegations made by the Applicant which lacked detailed information.  The Board found that it had insufficient evidence to be satisfied that the events and claims raised were factual.  The Board did not accept that the Applicant’s evidence about what occurred to him and his family in Ivory Coast was based on his personal or actual experience.  

21.  The Board was not prepared to accept that the Applicant’s parents were killed by Uncle, either through witchcraft or other means, or that the Applicant or his parents were ever subjected to abuse, threats, harassment, intimidation or violence from, by or on behalf of Uncle because of the Dispute.  The Board did not accept that the Applicant was forced to leave his country for the reasons claimed or that he was threatened with harm by Uncle because of the Dispute or any related grievance. The Board did not accept that the Applicant was a person of adverse interest to any person or group, including Uncle, at the time he left Ivory Coast.   

22.  In view of the aforesaid findings of fact, it was not necessary for the Board to further consider the issues of state protection and internal relocation in this case.

23.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

24.  In disputing the findings on assessment on evidence, credibility and risk of harm, the Applicant seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

25.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.  The Applicant also failed to attend the Court Hearing to pursue his application. 

26.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to all the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

27.  The Board found that the Applicant’s claims were not credible and there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if he returned to Ivory Coast.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk in Ivory Coast.  The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

28.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

29.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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