Galeboe Bassanaga Alias Galeboe Bassanaga E. v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3104/2019

[2025] HKCFI 6228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3104 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the father, aged 43 (“the father”) of the 2^nd applicant (“the daughter”), aged 15.  The father admitted he was negligent for not having the daughter named in Form 86.  Leave was granted to the father to join the daughter in this action by amending Form 86.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 21 June 2017 of the Torture Claims Appeal Board (“the Board’s Decision”).  Their joint application relies upon the facts of the 1^st applicant.  

3.Their application is late.  Their application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 21 September 2017.  Their application was filed on 21 October 2019, which is late for more than 2 years.  This issue will be dealt with below.

4.The applicants appeared before the Court on 10 November 2025.

5.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, the Director of Immigration is the interested party, and the daughter is joined as the 2^nd applicant.

The applicants

6.The applicants are nationals of Cameroon and Motswana.  The father is an illegal immigrant as he stayed in Hong Kong without the consent of the Director of Immigration (“the Director”).  The daughter was born on 28 October 2010 in Hong Kong.  

7.The father lodged a non-refoulement claim with the Director on the basis that, if refouled, he will be harmed or killed by the Botswanan authorities because of his participation in protests and strikes by mining workers in 2004 and his subsequent escape from police custody after having been arrested for his role in the protests.  He also claimed that he cannot return to Cameroon as the Botswanan authorities will find him there.  The daughter’s claim relies on her father’s claim.   

8.Details of the facts are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003104_2019_files/the_Board's_Decision.pdf.

The Director’s Decisions

9.The Director considered the applicants’ claims 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”).

10.By way of the Director’s Decision dated 28 June 2016 on their claim on Torture risk, BOR 3 risk and Persecution risk, and the Director’s Further Decision dated 21 April 2017 on their claim on BOR 2 risk, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated.

The Board’s Decision

11.The applicants appealed the Director’s Decisions to the Board.  On 15 May 2017, the Board conducted an oral hearing for their appeals.  The father had given oral evidence and answered the Board’s questions.

12.Having considered the evidence, the Board made the findings below.

(1)  As to the father, the Board did not accept that he was arrested and torture because of his participation in Debswana strike in 2004 or that he escaped from police custody in those circumstances; that he will be arrested or harmed by the Botswanan authorities for this reason if he returns to Botswana. [46]

(2)  As to the daughter, she can claim Cameroonian nationality by descent [49]; that the country of origin information (“COI”) said that girls there can be subjected to child abuse and forced early marriage.  Children, including girls had been abducted by Boko Haram and used as child soldiers and they may face discrimination, sexual harassment, rape and domestic violence. [52]

(3)  She will have the father’s care of her father in Cameroon and there is no reason why she will live in the areas where Boko Haram is active, though it is highly likely that she may not have same level of security and access to services in Cameroon as she would have in Hong Kong, the available information does not suggest she would be at risk of harm if she returns to Cameroon. [53]-[54]

13.For the reason above, the Board dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.The applicants filed Form 86 on 21 October 2019 for leave to apply for judicial review of the Board’s Decision.  The applicants did not put forth any valid grounds in support of their application.

15.In the father’s affidavit in support of their application, he reiterated his story in support of his claim and his daughter’s difficulties if she lives in Cameroon.  He has raised no specific reason to challenge the Board’s Decision.

DISCUSSION

16.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

17.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The applicants appeared before me.

19.It is apparent that the Board had separation consideration for the daughter if she is refouled.  I asked the father if he wished to bring any other child specific issue for my consideration.  The father said he is receiving medical treatment on his eyes and he did not know what will happen to him in future.  I consider this is not a valid reason in support of his daughter’s claim or to intervene with the Board’s Decision.

20.It is apparent that the applicants were not legally represented before the Board.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more liable to be subjected to the applicable risks than the parent.

21.The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

22.I am satisfied that the Board had adopted high standards of fairness in this case, and there is no other child specific issue that was not brought to the Board’s consideration because of lack of legal representation.

23.I consider the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

24.I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

25.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicants’ application a nullity.

Dated the 23^rd day of December 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