KONAN YAO PASCAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3409/2019

[2025] HKCFI 4211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3409 OF 2019

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 October 2019”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 24 October 2019 without identifying the decision maker.  However, a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 24 October 2019 (“the Board’s Decision”) was annexed to his supporting affirmation dated 18 November 2019.  It is clear that the applicant must be referring to the Board’s Decision in the Leave Application.  The applicant also confirmed at the oral hearing before this court on 3 July 2025 that the Board’s Decision was the subject of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003409_2019_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  The Board affirmed the decision of the Director of Immigration (“the Director”) dated 13 November 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.  Thus, on this court’s own motion and upon the applicant’s confirmation at the oral hearing on 3 July 2025, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 24 October 2019”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if returned to Nigeria or Ivory Coast, he would be harmed or killed by Nigerian agents as he, his father and his brother were active in the cause of Biafran independence in Nigeria.  His father was shot dead in a Biafran protest in February 2016, and his brother was found shot dead in September 2017.  The applicant himself escaped an attempted kidnap in Abidjan, Ivory Coast from people he believed to be Nigerian agents.

Oral hearing

8.  The applicant requested for an oral hearing and his case was heard on 3 July 2025.

9.  Apart from confirming that the Board’s Decision is the decision in respect of which relief is sought in the Leave Application, the applicant merely said that his life was in danger and he could not return to Africa, but he had already presented his problem to the Board.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 November 2019.

12.  As aforesaid, the applicant also failed to advance any ground at the oral hearing.

Discussion

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA 524).

14.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

15.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 July 2019 and the applicant was present.  Thus, the applicant did have the chance to present his case to the Board in person.

16.  The Board noted that the applicant’s initial statement was very brief and contained almost no detail at all, and thus intended to ask the applicant a number of questions in order to give him an opportunity to provide details of his assertions and also to test his assertions and establish the facts of the claim.  The Board questioned the applicant for details of his claims but found the applicant’s testimony vague, superficial and lacking in essential descriptive content.

17.  The Board found that the applicant merely repeated monosyllabically the very limited assertions set out in his statement and could provide no detailed description of any of the events in which he or any other had participated.  He appeared to know very little either about the movement for Biafran independence, the arrangements of meetings and protests relating to it or what happened at those meetings or protests, including those he claimed to have attended.  His testimony was very far from even the minimum that might be reasonably expected from a person involved in the Biafran independence movement even at the lowest possible level.

18.  The Board also found that the applicant was only able to repeat the limited assertions about the death of his father and brother in a robotic fashion.

19.  In relation to the alleged attempted kidnapping in Abidjan, the applicant’s testimony became even more vague and superficial that left the Board with no doubt that he was simply rehearsing a learnt account rather than describing actual events experienced in real life.

20.  The Board concluded that the applicant had plainly sought to regurgitate, in a limited and unconcerned fashion, a constructed account which he had poorly learnt and mostly forgotten.  The Board was certain that no element of his account contained any truth.

21.  Regarding the applicant’s claim that he escaped an abduction in Ivory Coast from Nigerian agents, the Board had conducted considerable research for any reports of the targeting of even high profile Nigerian Biafran activists by agents of the Nigerian State in Ivory Coast, but failed to find a single report indicating so.  The Board found that even accepting that the applicant had involved himself in Biafran demonstrations as claimed and even if he would be perceived as a Biafran activist in Nigeria, there was no evidence to suggest the Nigerian authorities targeted such activists in Ivory Coast.  The Board also found that even in the very unlikely event the applicant had honestly described the near abduction incident, there was absolutely no reason to believe, on the evidence presented and in light of the background country information, that the incident was anything other than mere criminality with no connection to the applicant’s alleged Biafran activities in Nigeria.

22.  Thus, the Board rejected the applicant’s claims as completely untruthful and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

23.  Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

24.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

26.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

27.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

28.  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 has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.  For reasons aforesaid, the Leave Application 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