Sesay Alpha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2485/2019

[2025] HKCFI 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2485 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 June 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), which refused to extend time for him to file his notice of appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 24 February 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, is a national of Sierra Leone. The applicant arrived in Hong Kong by the strength of his Sierra Leonean passport and permitted to remain as a visitor until 5 October 2017 but instead overstayed. He surrendered to the Immigration Department on 10 October 2017 and the applicant subsequently lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by the Gbangbani secret society.

6.According to the applicant, he was forced to become a member of their society but was told by his mother that he would go through an initiation process that involved severe torture, so he fled. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 January 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the past ill-treatment inflicted does not attain a minimum level of severity, perceived risk of harm is not as substantial as claimed, and the feared ill-treatment is assessed to be localized [14-17]; state protection was available [18-21]; and internal relocation alternatives were available and reasonable [22-26].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. The Board found the applicant’s appeal was a late filing under section 37ZT of the Immigration Ordinance, Cap. 115. The appeal was required to be filed on or before 28 February 2019 but the applicant filed the appeal on 23 April 2019, over 7 weeks outside the prescribed time limit [11].

10.The applicant explained that he did not receive the Director’s Decision and that he was not legally represented.

11.The Board refused to extend time for the applicant to file his notice of appeal, in effect, dismissing his appeal for the following reasons [12]-[16]:

(a)  the Board accepted that the Director’s Decision had been served on the applicant and he failed to give a satisfactory explanation for not receiving the Director’s Decision;

(b)  that the applicant was not legally represented was not a good reason for his delay as he had been given notice of filing the notice of appeal in the Director’s Decision;

(c)  the Board had considered the merits of his case by reference to the Director’s Decision and it agreed with it; and

(d)  the applicant had not given any further information to challenge the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.The applicant has raised no valid ground to challenge the Board’s Decision and there is no reason that this Court should interfere with it.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.