Nkouagne Gilbert v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 130/2022

[2026] HKCFI 2235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 130 of 2022

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 (Non-refoulement Claims) Connie Lee:

1.   Form 86 be amended, adding the Torture Claims Appeal Board/ Non refoulement Claims Petition Office as the Putative Respondent and naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 9 February 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Director of Immigration.  Upon confirmation with the Applicant, the Leave Application is intended to be directed against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 8 December 2021 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 15 June 2018 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.The Applicant attended the oral hearing scheduled before me but simply repeated his position that the Board’s Decision is an unfair decision.

Discussion

4.Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  As matter stands, the Applicant has failed to identify any valid or effective public law grounds.[3]

5.In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[4]

7.First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[5]

8.The Board was acutely aware of the Applicant’s claim that if forced to return to Cameroon, (1) he would be arrested, detained and tortured by agents of the State or with their acquiescence due to the allegations made against him by the Minister, either to punish him or to obtain information from him about his involvement in the robbery in November 2004; and (2) he would be at risk from the conflict between the government and the Islamist group Boko Haram.

9.The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials and was entitled to find (1) there was no credible evidence that the Applicant would still be wanted by Gendarmerie or any other authority in Cameroon in relation to the robbery independently of the Minister; (2) with the death of the Minister (who, according to the Applicant had instigated his detention and torture), the Applicant would face no real risk of harm in relation to the robbery or as a consequence of his subsequent detention and release by officers of the Gendarmerie;  (3) he  would not be at risk of harm solely on the basis that he had to return to Cameroon as a failed asylum seeker; (4) there was no evidence that the Cameroon government would now suspect him of funding separatist activity and/or that the Applicant would be so identified or identified as a separatist; and (5) he would not face a real risk of harm from Boko Haram and/or solely because of his ethnicity if he were to return to Littoral or Central provinces.

10.It follows that the Board was entitled to conclude there were no substantial grounds for finding that there was a real risk that the Applicant would be subjected to torture, ill-treatment or persecution.

11.Second, there is simply nothing to indicate the Board had failed to take into account any relevant matters.  The Board was quite simply entitled to come to the conclusions it did.

12.Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

13.Accordingly, I dismiss the Leave Application.

Dated the 27^th 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