Assah Kodjo v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1012/2021 on BabelCite. This High Court CFI judgment was delivered on 22 April 2026.
1. By way of Form 86 dated and filed on 19 July 2021, the 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 25 June 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 3 cases
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HCAL 1012/2021 [2026] HKCFI 2304 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1012 OF 2021
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 19 July 2021, the 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 25 June 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claims for non-refoulement protection in Hong Kong were not substantiated on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board rejected both the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 November 2013 (“the Director’s 2013 Decision”), which rejected the applicant’s CAT claim[1] on the ground of Torture Risk[2], and the applicant’s petition against the decision of the Director dated 31 August 2018 (“the Director’s 2018 Decision”), which rejected the applicant’s non-refoulement claim on the grounds of BOR 2 Risk[3], BOR 3 Risk[4] and Persecution Risk[5] under the USM, and the Board confirmed both the Director’s 2013 Decision and the Director’s 2018 Decision. 3.Details of the procedural history of the applicant’s claims for non-refoulement protection can be seen in paragraphs 7 to 18 of the Board’s Decision. The applicant’s case 4.It is not necessary for this court to repeat the details of the applicant’s case here, as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 5.In sum, the applicant claimed for non-refoulement protection because if refouled to Togo, the ruling party, Rassemblement de Peuple Togo (Reunion of People of Togo) (“RPT”), and/or private militia/paramilitary would arrest, torture or kill him as the applicant was seen as an opponent or a rebel. The applicant claimed that he was a supporter of Union de Forces du Changement (Reunion of the Forces for Change) (“UFC”), which was the then opposition party to the ruling party. In 2012, RPT became known as the Union pour la Republique (Union of the Republic) (“UNIR”). Oral hearing 6.The applicant requested for an oral hearing of the Leave Application and his case was heard on 26 March 2026. 7.When this court asked the applicant for the grounds for his intended judicial review, the applicant said that he had problems in his country because he supported a political party. He complained that the Board was biased because it only mentioned about his mother but did not take into account what he had gone through. He wanted to have judicial review to find a solution to his problems as the Board had left his problems aside and talked about whether his memory was correct. 8.The applicant also alleged that the Board said things that were not what he had said, but he could only point out two points after reading the Board’s Decision. He first referred to paragraph 93 of the Board’s Decision and said that it had something to do with his life. He then said that the Board found him to be a low-level supporter, but those who died would not necessarily be the leader. Grounds for judicial review 9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 10.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 19 July 2021. 11.What the applicant said at the oral hearing before this court did not amount to any valid grounds for his intended judicial review either, as he did not provide any meaningful particulars to his accusations. Discussion 12.First of all, the applicant was represented by a duty lawyer assigned by the Duty Lawyer Service at the oral hearing before the Board. Hence, the applicant did have the opportunity to present his case properly to the Board through his legal representative. 13.As can be seen from the Board’s Decision, the Board had analysed and considered the applicant’s case and all the evidence with due care. The fact that the Board rejected the applicant’s claim for non-refoulement protection does not mean that the Board had put his problems aside as alleged by the applicant. Moreover, the applicant’s own risks on all the applicable grounds were individually assessed. The Board did not merely mention the applicant’s mother instead of him in the Board’s Decision. 14.In paragraph 93 of the Board’s Decision, the Board stated that other than his claims related to fear of proscribed harm due to his political opinion/being formerly suspected of connection to rebels, the applicant had not raised another basis for non-refoulement protection in his claims. There is nothing wrong with this statement at all, and in fact it shows that the Board was fully aware of his alleged problems. The Board was also entitled to find that there was no real risk to the applicant as he was a low-level supporter. 15.Thus, this court finds that none of what the applicant said at the oral hearing before this court constitutes a valid ground to challenge the Board’s Decision. 16.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). 17.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 April 2021. The applicant was present and, as aforesaid, was represented by a duty lawyer. Thus, the applicant was given the chance to present his case to the Board through his legal representative. 19.As can be seen from the Board’s Decision, the Board had considered all the submissions by the legal representatives of the applicant and the Director, including extensive country of origin information (“COI”) submitted by both parties. 20.In paragraphs 52 to 80 of the Board’s Decision, the Board laid out its findings and assessment of the applicant’s case. In gist, the Board accepted that when the applicant was in Togo, he was a supporter of the UFC. The Togo authorities arrested and harmed the applicant in 1993 for reasons unrelated to his support of the UFC. However, the Board did not accept that the 2004 arrest occurred and consequently, it was not the reason the applicant left Togo in 2004. Further, the Board did not accept that the Togo authorities had threatened the applicant’s wife, children and mother and did not accept that the applicant’s name was on any wanted list or black list. The Board considered that the applicant had fabricated these parts of his claims to strengthen his application for non-refoulement protection. 21.As can be seen from paragraphs 81 to 88 of the Board’s Decision, the Board had taken into consideration COI submitted by both the applicant and the Director in assessing the applicant’s future harm. The Board considered that given the RPT/UNIR and the UFC had achieved rapprochement and were no longer political opponents, the Togo authorities would no longer be targeting supporters of the UFC for any harm. In the personal circumstances of the applicant, namely, someone who was once, long ago, a low-level supporter of the UFC, the Board considered there to be only a remote or speculative risk, and therefore not a real risk, that the applicant would be targeted for harm if he was returned to Togo. 22.The Board had also, for the sake of completeness, elaborated in paragraph 89 of the Board’s Decision that in the event that the Board was wrong in rejecting the applicant’s claims regarding the 2004 arrest, the Board still found that the applicant’s claim that the current president of Togo would still somehow remember him and retain a personal grudge against him to be at best speculative or remote and much closer to being pure fantasy. The Board considered that there was no real risk to the applicant that the current president or the machinery of government of Togo would still target the applicant for harm for his failing to make a TV statement. The Board reached that conclusion both because of the passage of time since 2004 and COI regarding the rapprochement between the UFC and RPT/UNIR. 23.Moreover, the Board had given full reasons in paragraph 90 of the Board’s Decision for rejecting the applicant’s claim that he would be a political activist if he was refouled to Togo. 24.Thus, the Board found, on the credible evidence before it, that the applicant did not face a real risk of any of the proscribed forms of harm for seeking non-refoulement protection. 25.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board had found that the applicant was not at risk of harm from the RPT/UNIR and/or authorities of Togo and/or henchmen/private militia/paramilitaries connected to RPT/UNIR due to his political opinion or being formerly suspected of connection to rebels if he was to return to Togo, it is not necessary for the Board to consider the availability of state protection. 26.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 27.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 28.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 29.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. 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. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 30.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 31.For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd day of April 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] CAT is the abbreviation for the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Claims for non-refoulement protection under Article 3 of the CAT used to be handled by the Immigration Department under an administrative screening mechanism prior to the implementation of the statutory scheme under Part VIIC of the Immigration Ordinance. [2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] 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. [5] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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Cases cited in this judgment