CACV 5/2025, [2025] HKCA 502
On Appeal from [2024] HKCFI 3390
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 5 OF 2025
(ON APPEAL FROM HCAL NO 2252 OF 2019)
________________________
BETWEEN |
| | MANKA KUTUBO | 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: | 3 June 2025 |
| Date of Judgment: | 24 June 2025 |
_______________
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 December 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 8 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 November 2018.
BACKGROUND
2. The Applicant is a national of Gambia. He entered Hong Kong as a visitor on 15 June 2014, and had overstayed since 14 September 2014. On 29 September 2014, he surrendered himself to the Immigration Department. On 23 October 2014, he lodged a non-refoulement claim on the basis that: (i) he was an active member of the United Democratic Party and took part in political activities against the repressive dictatorship of the former Gambian government, (ii) although the United Democratic Party was part of the current coalition government in Gambia, the current government was a temporary one and would only last for 3 to 5 years, and (iii) should the previous government be re-elected in the future, he would be at risk of being arrested or attacked if he returned to Gambia. Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of his decision dated 27 December 2024.
3. By a Notice of Decision dated 16 November 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decision to the Board. On 8 July 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §11 of his decision, as follows:
“The Board did not find the [Applicant] to be a credible witness. His evidence about the documentary proof he produced was riddled with inconsistencies and contradictions [48]-[53]. In any event, the purported problems of the [Applicant] related to the time when Gambia was under a different government and there was no indication that he would be subjected to future risk of harm upon return. Based on such findings, the Board rejected the [Applicant’s] claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [13]-[25], [55].”
THE JUDGE’S DECISION
5. On 7 August 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 his supporting affirmation.
6. On 27 December 2024, the Judge refused to grant leave to apply for judicial review, for the following reasons:
“[15] 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…
[16] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said he cannot say that the Board was wrong.
…
[18] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded. The [Applicant] has not raised any valid ground to challenge the Board’s Decision.
[19] There is no reason that the Court should interfere with the Board’s finding of the facts.
[20] 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 6 January 2025, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]
8. In his 4-page written submissions belatedly lodged on 13 May 2025, the Applicant alleged, inter alia, that:
(1) The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[5].
(2) The Judge did not apply high standards of fairness[6].
(3) The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons to justify their decisions[7].
(4) The Judge did not carefully consider the problems he would face in his home country[8].
(5) The Judge’s decision was unreasonable[9].
(6) The Board failed to give him a sufficient chance to provide evidence[10].
(7) The Board relied on unofficial and hearsay materials[11].
9. At the hearing of the appeal, the Applicant informed the Court that he married a Hong Kong resident in 2022, but had no children, and his dependent visa application was under process. He also said that he had decided to live in Hong Kong.
DISCUSSION
10. 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’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524, 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’s complaints raised in the Notice of Appeal and in his written submissions against the decision of the Judge are general allegations without particulars, and do not constitute valid grounds of appeal against the Judge’s decision.
13. 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.
14. The Applicant’s appeal has no merits, 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.
[5] The Applicant’s Written Submissions, §§1, 12 and 13.
[6] The Applicant’s Written Submissions, §§2, 3 and 10.
[7] The Applicant’s Written Submissions, §4.
[8] The Applicant’s Written Submissions, §§5 and 6.
[9] The Applicant’s Written Submissions, §7.
[10] The Applicant’s Written Submissions, §9.
[11] The Applicant’s Written Submissions, §11.