Saizonou Olivier v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3620/2019

[2025] HKCFI 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3620 of 2019

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;

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 4 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 7 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 19 October 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the USM.

Background

2.It is not necessary for me to reiterate the material facts of the present case here.  The Applicant’s personal background, his case and claims inclusive of the facts identified by him to allege that he would be harmed or killed in Benin by his uncle, Mr. Patrick Saizonou, because of their land dispute, and the immigration and procedural history, etc. were set out in details in the Board’s Decision.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  The Board’s abbreviations and descriptions are adopted herein unless otherwise specified. 

Discussion

3.The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, and I have therefore refused leave.

4.The leave requirement operates as a ‘filtering’ process. I am not required or expected to give elaborate reasons for my decision: see Re Zunariyah [2018] HKCA 14 at §23.  It suffices for me to state my observations below, which I make after considering the detailed reasons and full analysis of the Board, reminding myself at the same time the seriousness of the issue at hand and hence the enhanced standard that has to be adopted in scrutinizing the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.   

5.The materials adduced by the Applicant for the Leave Application are limited.  An applicant is required to identify the grounds of judicial review clearly and succinctly in Form 86: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.  This is not done and the Applicant has failed to identify any grounds for his intended judicial review.

6.The applicant in an ex parte leave application also needs to observe the duty of full and frank disclosure: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35.  The duty is an onerous one, requiring the applicant not only to verify all material facts known to him by affidavit, but also to disclose all potential legal answers to his claims.  However, in this case, other than expressing ‘disagreement’ with the decisions of the Board and the Director and exhibiting copies of the Board’s Decision, the Non-refoulement Claim Form and the Director’s Decision, the Applicant has mentioned nothing else in his supporting affirmation.  The fact that the Applicant acts in person does not relieve him of the duty nor provide answer to his breach.

7.The Board’s discussion and consideration of the evidence and different grounds under the USM were set out in inter alia the following paragraphs in the Board’s Decision: (i) the evidence at the hearing (§§20-30); (ii) the Board’s assessment of the Applicant’s claim and credibility, etc. (§§31-37); (iii) Persecution Risk (§§42-43, 47); (ii) BOR 2 Risk (§§44, 48); (iii) BOR 3 Risk (§§45, 49); and (iv) Torture Risk (§§46, 50).  Having considered them with rigorous examination and anxious scrutiny, I have satisfied myself that the Board reached the conclusion that the Applicant’s non-refoulement claim should fail after correctly identifying the issues, making findings of fact based on its evaluation of the available evidence (§§20-41) and applying the relevant law and legal principles relating to the Grounds.

8.Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  The Applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  As the materials provided by him simply do not demonstrate any basis or ground to challenge the legality, rationality or fairness of the process below, the Court will not usurp the role of the Board as the primary decision maker and will not intervene by way of judicial review: see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra), etc.

Conclusion

9.For these reasons, I make an order that the Leave Application be dismissed.

Dated the 13^th day of March 2025

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