OUSSOU AUGUSTIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 140/2020

[2025] HKCFI 2121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 140 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;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) dated 11 December 2019 (the “TCAB Decision”) which affirmed the decision by the Director of Immigration (the “DOI”) dated 29 August 2019 refusing the Applicant’s non-refoulment protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing of this application and he attended the same.

Background

3.  The Applicant is a national of Cote d’Ivoire.  On paper he seeks non-refoulement protection on the basis that he believes that he will be harmed or even killed by government soldiers if he is returned given the chaotic political and military situation in Cote d’Ivoire. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

6.  At the hearing, the Applicant asked for mercy and pity and said that if he could be allowed to stay then he will be able to work, which would be helpful to him.  These however have no relevance to the issue at hand.

7.  Looking at the TCAB Decision, the TCAB applied the correct legal principles in respect of the four applicable grounds under the USM [7-22], considered in full the materials before it [23-65], including the Applicant’s testimony at the hearing before it [36-37], before coming to the conclusion that none of the four grounds was sufficiently made out [65-73].

8.  I note in particular that the Applicant, at the hearing before the TCAB, had this exchange with the TCAB: “when asked if he thought that he would be harmed in any way if he returned to Cote d’Ivoire, the [Applicant] claimed that nobody but himself would harm him” [36].  Further, it was noted by the TCAB that “elsewhere in the hearing, the [Applicant] explained that he did not wish to return Cote d’Ivoire simply because there are some things in life that money cannot buy such as happiness and he fears that if he were to return to Cote d’Ivoire he would not be happy” [36].  The TCAB nonetheless still proceeded to fully analyse his claim as outline above.

9.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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