Prempeh Joseph v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1426/2022

[2026] HKCFI 3807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1426 of 2022

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

1.  The Form 86 be amended to name the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

1.By a Form 86 filed on 7 December 2022 (“Form 86”), the applicant, a national of Ghana, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 7 September 2022 (received by the applicant’s then solicitors on 9 September 2022) (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 27 March 2019.

2.In the Form 86, the Board was named both as the putative respondent and the putative interested party. The Director should be the putative interested party instead. The Form 86 shall be amended accordingly on the court’s own motion.

3.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

4.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.By written submissions dated 15 April 2026, which were 4-page long, the applicant seeks to advance two grounds for the intended application for judicial review. However:

(1)  First, the applicant relies on the principles set out in ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness are required given “the life and limb are in jeopardy and [the applicant’s] fundamental human right not to be subjected to torture is involved.”  The applicant then made multiple contentions, that the Board has erred in approaching the matter by simply trying to see whether he could find fault with the decision of the Director; the adjudicator has failed to scrutinize the Director; it was a general practice of the board to not question or find fault with the decision of the Director; and the Board ought, but have failed, to consider the country conditions of the applicant’s country of origin. No particulars were provided.

(2)  Second, the applicant referred to the legal principle that it is a constitutional duty of the decision maker to act fairly by satisfying the minimum standards of procedural fairness under common law. However, the applicant did not actually allege that the Director or the Board had fallen short of the requisite standard of fairness in reaching their respective decisions.

7.At the hearing on 4 May 2026:

(1)  The applicant initially refused to speak through the Court’s Hausa interpreter, who was a Nigerian instead of a Ghanian. The applicant insisted that the Ghanian Hausa was different from Nigerian Hausa and there was a real risk of misinterpretation. Therefore, the applicant requested for a Ghanian Hausa interpreter to be arranged and for an adjournment of the hearing if necessary.

(2)  The interpreter disagreed and stated that the difference was merely one of accent, akin to the difference between British and American English.

(3)  I observed that throughout the discussion on this issue, the applicant could explain his stance fluently in English, and he could understand both the interpreter and me in English. I therefore suggested to the applicant that he could make submissions in Hausa and correct the interpreter if found any errors in the interpretation. The applicant refused such suggestion.

(4)  Having considered the applicant’s proficiency in English, I ordered the hearing to proceed.   

(5)  Upon my inquiry, the applicant confirmed that he did not have any submissions to supplement the documents filed to support the application under the Form 86.

8.Applying the enhanced standard of scrutiny, I do not see any merits in the grounds advanced by the applicant. Nor do I see any errors of law, procedural unfairness of irrationality in the Board’s Decision.

9.For the first ground:

(1)  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

(2)  I see no basis of the applicant’s assertion or criticism that the Board was confining itself to simply finding faults in the decision of the Director. On the contrary, the Board has conducted a detailed and comprehensive analysis of the applicant’s case, his evidence given at various stages including at the appeal hearing, as well as the arguments advanced by the applicant’s counsel and the counsel for the Director at the appeal hearing respectively. The reasoning of the Director’s decision did not feature in the reasons of the Board’s Decision at all.

(3)  The assertion that the Board has failed to consider the country conditions of the applicant’s country of origin, viz. Ghana, is baseless. The Board’s Decision has taken the relevant conditions of Ghana into account (see paragraphs 55-58). In any event, the applicant did not provide any particulars as to what specific conditions in Ghana that the Board had failed to consider.

(4)  The first ground is without merits.

10.The second ground was a mere restatement of the well-established legal principles in respect of procedural fairness with no complaints against the Director of the Board about any unfairness in the procedures. The Board’s Decision has set out the procedural history of the applicant’s non-refoulement claim, including the two-day hearing before the Board on 29-30 March 2021. It is also noted that in both the screening interview and the hearing before the Board, the applicant was legally represented. I see no unfairness in the procedures and therefore no merits in the second ground.

11.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

12.After a detailed review and analysis of the evidence, as well as substantial submissions by the legal representatives of the applicant and the Director respectively, the Board found that (i) the applicant was not a witness of truth, and the centre piece of the appellant’s claim could not stand (see paragraph 79), and (ii) the applicant had failed to establish that he would face a real risk of suffering the proscribed harm should he return to Ghana in the reasonably foreseeable future (see paragraph 137). Based on the available materials, the conclusions of the Board were well justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

13.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 9^th day of July 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