Conteh Essa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1261/2020

[2025] HKCFI 3454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1261 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent at the hearing in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the name of the putative respondent be amended to Torture Claims Appeal Board /  Non-refoulement Claims Petition Office.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 22 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 August 2019 (the “Board’s Decision”).

2.In order for the proposed respondent to be properly named, I make an order to amend the Form 86 on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 21 July 2025 (the “Hearing”) but the Applicant was absent.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant is a dual citizen of Nigeria and Gambia. The basis of the Applicant’s claim is that he will be subject to a risk of serious harm or death from his former business partner known as “Musa” (the “Adversary”) if he returns to Gambia or Nigeria due to a business dispute he had with the Adversary. He also claimed that he would be at the risk of persecution by members of the Islamic faith in Gambia or Nigeria as he was of the Catholic faith.

The Leave Application is out of time

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 22 November 2019. However, the Form 86 was filed late for about 7 months. No request for time extension was made in the Form 86. Nevertheless, I will consider whether there is a basis to allow a late filing on my own motion.

6.In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

7.In the present case, the delay of about 7 months is significant. The Applicant also fails to provide any explanation in his Form 86 or his supporting affidavit. In addition, the Applicant’s failure to attend the Hearing gives rise to serious doubt as to whether he has any genuine intention to pursue the present Leave Application.

8.On account of the above, I would be prepared to refuse the late filing.However, for completeness, I would also consider the merits of the Leave Application.

Merits

9.It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142.

10.In the Form 86 and the accompanying supporting affidavit, the Applicant did not advanced any specific grounds in support of the Leave Application. 

11.Having examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-

(1)   There is no basis to interfere with the Board’s finding that there was no real risk of threat. As analysed by the Board, the factual account was vague and unconvincing, in particular, the Applicant was completely unable to provide any independent corroboration to his claim about his business and documentation of his alleged dealings with the Adversary. There was also no reasonable explanation for his delay in seeking non-refoulement protection despite having remained in Hong Kong for about 15 months (at §§56-63, 68, 75c-e).

(2)   On account of the unsatisfactory evidence of the Applicant, the Board was also entitled to reject the Applicant’s general assertion that he would be persecuted on the basis of his faith if he returns to Gambia or Nigeria. The Applicant has failed to provide any explanation as to why he would be personally at risk. There is also no evidence that he had been subject to any ill treatment for practising his faith in the past in Gambia or Nigeria (§§72-73, 75f).

(3)   Having regard to relevant Country of Origin information and the personal circumstances of the Applicant, the Board was plainly correct to find that sufficient state protection and reasonable internal relocation alternatives were available to the Applicant. Even though there were issues of police corruption and human rights abuse in Nigeria and Gambia, the governments of Nigeria and Gambia have made genuine efforts to combat these issues (§§64-67).

12.Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  Hence, I see no reason to grant a time extension.

Conclusion

13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

Dated the 19^th day of August 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