Re Hachimou Abdallah

CACV 73/2025, [2025] HKCA 620

On Appeal From [2025] HKCFI 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2025

(ON APPEAL FROM HCAL NO 2349 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 6 February 2025 ([2025] HKCFI 284) (“the Leave Decision”), refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 19 June 2019 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 19 September 2018 (“the Director’s Decision”) refusing his non‑refoulement claim.

2.On 17 February 2025, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.The applicant is a national of Nigeria.  He came to Hong Kong on 14 January 2017 as a visitor.  He overstayed and surrendered to the Immigration Department on 10 February 2017, claiming that he had lost his passport.  On 3 March 2017, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his uncle Hachimou, Habib and his gangsters.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [7] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.On 28 September 2018, the applicant appealed against the Director’s Decision to the Board.  The applicant attended an oral hearing before the Board on 9 April 2019.  By the Board’s Decision, the Board dismissed his appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [11] of the Leave Decision.  Essentially, the Board found that the applicant’s evidence was internally inconsistent and was very scant in relation to the alleged threats made by his uncle.  The Board also found that it would not be unduly harsh for the applicant to internally relocate and support himself. Having considered all the evidence, the Board found that his non-refoulement claim failed on all applicable grounds and dismissed his appeal.

THE JUDGE’S DECISION

6.On 14 August 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No grounds of challenge was advanced in his Form 86 or supporting affirmation.  As the applicant did not request for an oral hearing, the Judge considered and determined his application on paper.

7.By the Leave Decision, the Judge refused his application for leave to apply for judicial review.  His reasons were set out at [15] ‑ [21] of the Leave Decision:

“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. 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).

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

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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 (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.’

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant 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.

DISPOSITION

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

THIS APPEAL

8.In his Notice of Appeal filed on 17 February 2025, the applicant stated the following:

“I am disagree with the decision maker authorities. The decision made by Director of Immigration and decision by Torture Claim Appeal Board.” (sic)

9.Contrary to the directions of the Registrar of Civil Appeals dated 17 February 2025, the applicant failed to lodge any written submissions.

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 will 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 decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.In our view, the applicant’s appeal is a non-starter.  He merely stated that he disagreed with the Director’s Decision and the Board’s Decision without specifying public law error.  More importantly, he failed to specify any error in the Leave Decision.  His appeal must be dismissed on this basis alone.

12.In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

13.For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.