DEMBELE TIDIANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 652/2020

[2025] HKCFI 2982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 652 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  The Form 86 be amended on the Court’s own motion, naming only the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 24 December 2019” in place of “director of Immigration – 24-12-2019”; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Mali. By a Form 86 dated and filed on 15 April 2020 (“Form 86”), which was accompanied by an supporting affirmation also dated and filed on 15 April 2020 (“the Affirmation”), the Applicant sought leave to commence judicial review to “Review and change the decision by the [Director of Immigration (“the Director”)] – 24‑12-2019”.

2.  There was, however, no decision of the Director dated 24 December 2019. Rather, the decision of the Director was dated 17 March 2017 (“Director’s Decision”) which rejected the Applicant’s non-refoulement claims as premised on Torture Risk[1], BOR 2 Risk[2], BOR 3 Risk[3], and Persecution Risk[4]. The Applicant appealed/petitioned to the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) which, by way of a decision made on 24 December 2019 (“the TCAB Decision”)[5], found that such claims were not made out and confirmed the Director’s Decision.

3.  The Affirmation said “Change the decision made by the [Director] [TCAB] my life in danger if removed and have additional proof”, and exhibited the covering letter of the TCAB Decision and the TCAB Decision.

4.  Pursuant to the above, and a brief exchange I had with the Applicant at the oral hearing, I therefore did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application would stand only to be rejected, and I do so. Such an application is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have therefore amended the Form 86 of my own motion as set out above.

Background

6.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 6, 27 to 42). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement relief on the four applicable mentioned above stems from, throughout the proceedings, the fear of being harmed by a militant group that he believes to be the Islamic State, and before the TCAB/NRCPO also fear of harm from the Malian state itself as there was a risk the Applicant would be perceived as a member of an Islamist armed group; and

b.  The Applicant’s claim was rejected by the Director’s Decision, after which the Applicant then filed an appeal/petition to the TCAB/NRCPO. The latter held an oral hearing on 3 July 2019 at which the Applicant had the benefit of assistance from an interpreter, and representation from the Duty Lawyer Service. Eventually, the TCAB/NRCPO rejected his non-refoulement claims in the TCAB Decision.

7.  No grounds for judicial review are set out in the Form 86 or the Affidavit. The Applicant requested, and appeared before me, at an oral hearing of his leave application. Upon my asking him what was meant by the claim in the Affirmation that he had “additional proof”, he confirmed that there was no additional proof that he wanted to rely on.

8.  As the application for leave was made around 3 calendar weeks after 24 March 2020, I also asked the Applicant at the oral hearing what the explanation was for the delay. He said he had no explanation. However, I address this issue further below given that 24 March 2020 falls within the General Adjourned Period (“GAP”).

Legal Principles

9.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

10.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

11.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

12.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay (iii) the merits of the substantive application (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at paragraphs 43 to 45 as also cited in AW), and H v Director of Immigration (2020) 23 HKCFAR 248 at paragraphs 17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at paragraphs 12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

13.  Although the Applicant did not draw to my attention any explanation for the delay in filing the application for leave, I am prepared to approach the matter of delay by approaching the matter on the basis, and in the Applicant’s favour, that there has been (at worst) only a delay of some 2 weeks, and that such is only of a relatively minor nature given the unusual circumstances at the time[6].

14.  As the Applicant has not identified or set out any grounds of judicial review, there is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the arguability test, the significance of the merits of the substantive application in relation to whether there is “good reason” to extend time, and the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

15.  The TCAB/NRCPO set out the Applicant’s background to his claim for non-refoulement relief, observing that it was for reasons below that the Director’s Decision was confirmed in relation to all applicable grounds (Paragraphs 1 to 7). It then correctly outlined the relevant procedural approach to be applied in the Applicant’s case, and the law in relation to each of the 4 relevant grounds for non-refoulement relief (Paragraphs 8 to 26), followed by summarising the Applicant’s claims and evidence, including the “very detailed account of his claims” in his Non-Refoulement Claim Form (“NCF”), and further oral evidence and COI given and submitted to the TCAB/NRCPO (Paragraphs 27 to 42).

16.  The TCAB/NRCPO then identified the materials to which it was referred in the Hearing Bundle, including the NCF, and explained the specific approach taken in assessing the Applicant’s credibility and evidence (Paragraphs 43 to 46). It then went on to find that it was not satisfied, on the balance of probabilities, that the Applicant had given a reliable or credible account of the circumstances that led him to leave Mali, based on a detailed analysis of the available evidence, relevant COI, and claims made, before the TCAB/NRCPO. In doing so, the TCAB/NRCPO was conscious that what was ‘common sense’ or plausible in Hong Kong may not be the case in another country. It also did not accept that the Applicant was beaten or otherwise physically abused and threatened with Islamist group members for voicing his opposition to joining, or his account of how he escaped the camp of the same group and crossed into Algeria (Paragraphs 47 to 66).

17.  Accordingly, the TCAB/NRCPO did not accept, as it was entitled to, that the Applicant faced a real risk of either torture, CIDTP, deprivation of life, or persecution from Islamist groups, or that any real risk existed of the Applicant being perceived to be a member of an Islamist group by the Malian authorities (Paragraph 67).

18.  The TCAB/NRCPO then went on to find, again with reference to evidence and COI, that it was not satisfied that the Applicant faced a real risk of torture, CIDTP, deprivation of life, or persecution due to the general security and humanitarian situation in Mali, and in particular Bamako which was the Applicant’s home area. It considered that there was no real risk the Applicant would face any of the proscribed forms of harm should he be refouled to Mali (Paragraphs 68 to 74).

19.  Accordingly and given its prior reasoning, the TCAB/NRCPO then found that there was no Torture Risk, BOR2 Risk, BOR3 Risk, or Persecution Risk if he were refouled to Mali and, as the claims for non-refoulement protection were not made out, confirmed the Director’s Decision (Paragraphs 75 to 79).

20.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB/NRCPO Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying his claim, and consequently the risk of harm, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB/NRCPO. Moreover, the TCAB/NRCPO gave adequate reasons for the conclusions that it had reached. There is hence no basis to interfere with the TCAB/NRCPO’s findings of fact on matters which are primarily within its province.

21.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. I therefore see no good reason to extend time for leave to apply for judicial review, and do not consider that I should grant such an extension. I hence refuse to grant such an extension and to grant leave to apply for judicial review.

22.  Even if I were to approach the matter on the basis that there has been no delay on the part of the Applicant, I would still, and I do, refuse to grant leave to apply for judicial review, given that there are no reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

23.  In the circumstances, I have ordered that the application for leave to apply for judicial review be 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