RE KOUADIO KOUAME MOISE

CACV 110/2025, [2025] HKCA 700

On appeal from [2025] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 110 OF 2025

(ON APPEAL FROM HCAL NO. 2098 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lai (“the Judge”) given on 25 February 2025[1] refusing to give him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 21 June 2019 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 20 July 2018 which rejected the applicant’s non-refoulement claim.

The applicant’s claim

2.  The applicant is a national of Côte d'Ivoire (Ivory Coast), aged 40.  He entered Hong Kong as a visitor on 5 February 2017 and was permitted to stay for two days.  He did not depart and has since overstayed. On 13 April 2017 he surrendered to the Immigration Department and raised a non-refoulement claim.  

3.  The applicant’s claim was on the basis that, if refouled, he would be harmed or killed by his uncle because of a dispute over the ownership of some family land that he had inherited from his father.  The details of his claim were set out at [5] to [14] of the Board’s decision.  

4.  In gist, the applicant claims that his father had inherited certain family land from his grandfather, which had been a matter of dispute between his father and his paternal uncle. When his father passed away in 1996, the land was passed to him.  This angered the applicant’s uncle who demanded that the land be transferred to him.  The applicant believed, on the basis of hearsay, that his uncle had killed both his parents through acts of witchcraft, although the medical proof showed the cause of death to be otherwise.  While accepting that he had not personally been threatened by his uncle, the applicant asserts that in January 2017 when the applicant was in Mainland China for business, he learned from his kinsmen that his uncle had threatened to kill him if he were to return to his country.  

The Director’s and the Board’s decision

5.  The Director rejected the applicant’s claim on the torture risk^[2], BOR 3 risk^[3], BOR 2 risk^[4] and persecution risk^[5] grounds. 

6.  The applicant appealed to the Board.  The applicant failed to attend the oral hearing scheduled on 6 May 2019.  The applicant did not respond to the Board’s notice of intention to proceed to determine his appeal in his absence and did not provide any explanation for his absence.  The Board therefore proceeded to deal with his appeal.  By a decision given on 21 June 2019, the Board dismissed his appeal.

7.  The Board observed that the applicant’s claims were lacking in detail in significant respects, including the details of the land involved, his father’s inheritance of it, the killing of his parents through acts of witchcraft, and how and why he could continue living in his family home and working in his father’s business until 2017 without any adversity.  As there was no opportunity to discuss these issues with the applicant owing to his absence at the appeal, the Board considered there was insufficient evidence to be satisfied that the events and claims raised by the applicant were true facts.  The Board was not prepared to accept that the applicant’s parents were killed by his uncle, or the applicant and his parents had been subjected to abuse, threats, harassment, intimidation or violence from his uncle because of the land dispute, or the applicant was forced to leave his home country or could not safely return to it for the reasons he claimed.  The Board found that the applicant’s claims were not credible and concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  By a Form 86 dated 23 July 2019, the applicant applied for leave to judicially review the Board’s decision.  In his supporting affidavit, he stated that his uncle would kill him through witch-hunt, that the land dispute had caused many lives and there was no involvement of the authorities.

9.  The Judge listed the application for an oral hearing on 23 January 2025.  The applicant was absent at the hearing.  The Judge proceeded to deal with the application.  By a Form CALL-1 dated 25 February 2025, the Judge refused to give leave for judicial review and gave his reasons at [23] to [29] as follows:

“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.”

This appeal

10.  On 7 March 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal:

“[The appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  The applicant’s written submissions lodged on 16 June 2025 state the following:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection. Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan[6][2014] 4 HKLRD 277.   

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions.

(3)  At common law, there are minimum standards of procedural fairness required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions, v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

12.  The applicant was absent at the hearing of the appeal.

Our reasons for decision

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  Further, it is well established that assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

15.  In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant, which are directed solely at the Board’s decision, have no merits. Our reasons are as follows:

(1)  The complaint in the Notice of Appeal about the use of and reliance on the country of origin information (COI) is irrelevant because the Board did not rely on any COI in dismissing the applicant’s appeal. Instead, the Board had rejected the applicant’s evidence as lacking in material particulars and not credible such that it was not satisfied that the applicant had established that he would be subjected to the risk of harm as claimed.

(2)  The applicant’s assertion that he will face hardship or will be in danger if he returns to his home country cannot stand in light of the Board’s rejection of the factual basis of his claim on credibility grounds.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. Both before the Judge and in this appeal, the applicant has not advanced any arguable ground to challenge the findings of the Board.

(3)  The complaint in the written submissions that the Board did not approach the appeal as a rehearing is factually incorrect. It is evident from the Board’s decision that it did not approach the appeal by simply reviewing the Director’s decision to see if it was justified.  On the contrary, the Board gave independent and detailed consideration and analysis of the applicant’s claim before reaching its own finding and conclusion on the case. 

(4)  As to the cases and legal principles cited in the written submissions, the applicant has not explained how they relate or apply to his case or appeal.

16.  Further and importantly, the applicant has not pointed to any error in the Judge’s reasoning and decision.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

17.  For the above reasons, the applicant’s appeal has no merit.  Accordingly, the appeal is dismissed.

[1] [2025] HKCFI 812

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] It was mistakenly cited as ST v Director of Immigration.