CACV 421/2024, [2025] HKCA 83
On Appeal From [2024] HKCFI 2449
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 421 OF 2024
(ON APPEAL FROM HCAL NO 1821 OF 2019)
________________________
BETWEEN |
| | DADE KOFI | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and Lisa Wong J in Court |
| Date of Hearing: | 22 January 2025 |
| Date of Judgment: | 13 February 2025 |
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J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 27 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 April 2018.
BACKGROUND
2. The Applicant is a national of Ghana. He claimed that he entered Hong Kong illegally in November 2005. On 18 November 2006, he was arrested by the police. On 3 December 2006, he raised a torture claim[1], which was later rejected by the Director on 21 December 2012. On 18 February 2013, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than risk of torture. His claim was made on the basis that, if refouled, he would be harmed or killed by two paternal uncles (Kwame Dade and Ochin Dade) over a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of his decision dated 27 September 2024.
3. By a Notice of Decision dated 12 April 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decision to the Board. On 12 June 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12 and 13 of his decision, as follows:
“[12] The Board noted from the country of origin information that although land dispute is prevalent in Ghana, the Ghanaian government had devoted a good deal of attention to the problem [13]-[14]. Meanwhile, the Board found that the [Applicant] had never sought redress of his land dispute problem through the established mechanism in Ghana and there was also delay in seeking protection [15]-[16].
[13] The Board agreed with the Director that the claimed risk of harm from his uncles should have dissipated given the passage of time and that his uncles had already taken and sold the inherited land [19]. Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [21]-[32].”
THE JUDGE’S DECISION
5. On 2 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in his supporting affirmation of the same date.
6. On 27 September 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:
“[17] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…
[18] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] asked the Court to review the Board’s Decision.
…
[20] For the reasons given above, the Board rejected his claim and dismissed his appeal. The strongest reason is that his uncle had already taken the piece of land and sold it. There is simply no motive for his uncle to harm him if he returns to his country.
[21] The [Applicant] did not dispute the above fact. He has raised no valid reason to challenge the Board’s Decision.
[18] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”
THIS APPEAL
7. In his Notice of Appeal filed on 8 October 2024, the Applicant merely stated that he wanted to appeal.
8. In his 2-page written submissions belatedly lodged on 27 December 2024, the Applicant repeated the factual basis of his non-refoulement claim, and that his life would be in danger if he returned to his home country.
9. At the hearing of the present appeal, the Applicant had nothing to add.
DISCUSSION
10. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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 or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).
11. Further, the assessment of evidence, country of origin information, 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: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
12. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
13. The Applicant’s appeal against the Order has no merit, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Lisa Wong)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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 persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.