Sarfo Victoria and Another v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2097/2020 on BabelCite. This High Court CFI judgment was delivered on 20 March 2026.
1. By way of Form 86 dated and filed on 20 October 2020, the 1 st applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 June 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cited by 2 cases · Cites 5 cases
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HCAL 2097/2020 [2026] HKCFI 1622 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2097 OF 2020
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 20 October 2020, the 1st applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 June 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board’s Decision was actually regarding the petitions by both the 1st applicant and her son, ie the 2nd applicant, regarding the decision of the Director of Immigration (“the Director”) dated 31 January 2018, which rejected their claims for non-refoulement protection on BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). 3.By an affirmation dated 30 October 2020, the 1st applicant applied to add her son in the Leave Application because the Immigration Department requested her to do so. The application was approved by Deputy High Court Judge Bruno Chan on 23 November 2020. 4.Accordingly, an Amended Form 86 was filed on 2 December 2020 to include the 1st applicant’s son as the 2nd applicant. 5.The Board found that the applicants’ claim failed on all the applicable grounds (except Torture Risk[4]) under the USM. Hence, the Board rejected the applicants’ petitions and confirmed the Director’s Decision, which rejected their non-refoulement claim. 6.The applicants had previously made a torture claim and their claim was rejected by the Director on 11 September 2012. Their appeal against that decision was rejected by the Adjudicator (Torture Petitions) on 30 October 2012. Thus, the applicants’ Torture Risk had been finally disposed of, and it was not necessary for the Board to re-assess the same in the Board’s Decision. Amendments 7.The 2nd applicant, born on 18 August 2006 in Hong Kong, was a minor when the Leave Application was filed. He was represented by his mother, ie the 1st applicant, as his next friend. Thus, on this court’s own motion, the 2nd applicant’s name in the Amended Form 86 is amended to “Dredon Gyan Akwasi (a minor) by Sarfo Victoria, his next friend”. 8.The applicants named the Board and “Non-Refoulement Claims Petition Office” as the putative respondents in the Amended Form 86, when only the Board should be the putative respondent. 9.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 10.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”. Late application 11.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants had 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. 12.However, the 1st applicant filed her Form 86 on 20 October 2020, which was 3 months and 20 days after the Board’s Decision (made on 30 June 2020). The 1st applicant was hence late for 20 days in making the Leave Application. The 2nd applicant was only added as an applicant by way of the amended Form 86 on 2 December 2020. Thus, the 2nd applicant was late for more than 2 months in making the Leave Application. 13.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
14.The applicants did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 15.The delay of 20 days and more than 2 months by the 1st applicant and the 2nd applicant respectively are not insubstantial, and there was no explanation offered for the delay. 16.As discussed below, there is no merits in the 1st applicant’s case, but the 2nd applicant’s case is arguable. 17.Having considered the above criteria, this court is not prepared to grant any extension of time to the 1st applicant to file the Leave Application, even if an application for extension of time was made. The 1st applicant’s Leave Application can therefore be dismissed on the ground of being made out of time alone. 18.Since the 2nd applicant does have an arguable case, extension of time is granted for the 2nd applicant to file the Leave Application on 2 December 2020. The applicants’ case 19.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 20.In sum, the applicants claimed for non-refoulement protection because if returned to Ghana, both of them would be at risk of harm or death from a moneylender named Kojo, to whom the 1st applicant was indebted. The 1st applicant’s late husband borrowed a loan of US$20,000 from Kojo in 2003 and the 1st applicant acted as the guarantor of the loan. The applicant’s late husband died in June 2005 and Kojo demanded the 1st applicant to repay the loan and threatened to kill her if she failed to do so. Legal representation for the 2nd applicant 21.Since the 2nd applicant was a minor when the Amended Form 86 was filed, the 1st applicant, in her capacity as the 2nd applicant’s next friend, should have sought legal representation for the 2nd applicant according to Order 80, rule 2 of the Rules of the High Court, but she did not do so. 22.However, at the time of this decision, the 2nd applicant is already an adult (19 years old) and he is not required to have legal representation any more. More importantly, this court is of the view that the lack of legal representation will not prejudice the interest of the 2nd applicant in the Leave Application. 23.Thus, this court will just treat the lack of legal representation for the 2nd applicant as a mere irregularity and it will not nullify the proceedings herein (see Order 2, rule 1(1) of the Rules of the High Court). Disposal on paper 24.The applicants did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Thus, the Leave Application is dealt with on paper. Grounds for judicial review 25.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 26.The applicants did not advance any ground for their intended judicial review in the Amended Form 86. 27.In the 1st applicant’s supporting affidavit/affirmation dated 20 October 2020, the 1st applicant merely stated that she did not want to go back to her country of origin Ghana because her life was still in danger and her moneylender was still looking for her. 28.As to the 2nd applicant, the 1st applicant stated that the 2nd applicant did not have any case in Hong Kong with the Director because he was born in Hong Kong. The 1st applicant did not know why the Immigration Department wanted her to join the 2nd applicant in her case. Discussion 29.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 30.Thus, it is not for this court to re-assess the applicants’ cases for non-refoulement protection. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid grounds being advanced by the applicants. 31.In assessing the applicants’ petition, the Board held an oral hearing on 29 May 2020. The 1st applicant was present and also acted on behalf of the 2nd applicant. 32.The Board found that the applicants’ case originated from a loan dispute between the 1st applicant’s late husband and Kojo. There was no evidence to support the 1st applicant’s belief that her late husband’s death was related to Kojo. The Board found that Kojo had no intention to carry out his threats against the 1st applicant. On the contrary, Kojo was prepared to give the 1st applicant one chance after another to repay her loan. Thus, the Board found that the threats from Kojo were merely a measure to pressurise the 1st applicant to repay the loan. 33.The Board also found that although the 1st applicant had been attacked by Kojo and/or his people twice, she only suffered minor injuries which did not attain a minimum level of severity. The applicants’ fear of ill-treatment did not fall within the definition of persecution and was unrelated to any Convention reasons. 34.As to the 1st applicant’s assertion that the Ghana police would not help her, the Board found that the Jamasi police had actually looked into the case of her late husband’s death and an autopsy report was prepared. It was not a case that the police had failed to follow up the investigation at all. The Board found that while country of origin information (“COI”) showed that there were problems of corruption and inefficiency of the Ghana police and other authorities, there was also objective COI suggesting that structured police forces were in place in Ghana and the government had taken practical steps to improve the performance and effectiveness of the police. 35.Furthermore, the Board found that internal relocation was a viable option for the applicants. There was no evidence to show that Kojo’s power and influence went beyond the 1st applicant’s home village and he was resourceful enough to locate the applicants had they moved to stay in some other parts of the country. The 1st applicant, being a mature adult with nine years of education and years of experience as a farmer, should have no difficulty surviving in another city in Ghana. 36.Hence, the Board concluded that the applicants were not entitled to non-refoulement protection. 37.The assessment of evidence, COI materials and risk of harm were primarily within the sole ambit of the Board on appeal/petition. The Board was entitled to come to its own conclusion. This court finds no errors of the Board in reaching its decision for the 1st applicant at all. 38.Having rigorously examined the Board’s Decision 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 the applicable grounds under the USM, the burden of proof and the standard of proof in relation to the 1st applicant’s case. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision regarding the 1st applicant. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions regarding the 1st applicant. 39.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1st applicant has failed to establish such a claim and hence leave must be refused for her to apply for judicial review. 40.However, this court notes that the Board did not in fact assess the risk of the 2nd applicant separately as a child, who was 13 years old when his case was presented to the Board for assessment. 41.Although the Board found that there was nothing in the case which suggested that Kojo and/or his people would do anything to harm or even kill the 2nd applicant, it did not discuss the needs and risks specific to the 2nd applicant. It is also not clear why the Board concluded that it would be in the 2nd applicant’s best interest for him to stay with the 1st applicant’s family while the 1st applicant was working in places other than her home village. 42.This court notes that the Board was aware that the natural father of the 2nd applicant was an African whose whereabouts was unknown at the time of the Board’s Decision. However, the father’s ethnicity and nationality were not mentioned. It was thus unclear whether the 2nd applicant was of mixed ethnicity and whether he would be accepted by the 1st applicant’s family or people living in the vicinity. The consequence of having to live with his grandparents, aunts and uncle whom the 2nd applicant had never met was never discussed, nor were the 2nd applicant’s other specific needs, if any. 43.As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-
44.Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 2nd applicant’s claim and his personal circumstances in the Board’s Decision. 45.In this regard, leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case. Conclusion 46.For reasons aforesaid, the 1st applicant’s Leave Application in respect of the Board’s Decision is dismissed for being made out of time and also for lack of merits. Extension of time is granted to the 2nd applicant to file the Leave Application on 2 December 2020, and leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s Decision. 47.The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 31 March 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 20th day of March 2026
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
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees. [4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
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