NGAMBI MWENE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2346/2019

[2025] HKCFI 2073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2346 of 2019

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 14 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 20 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 October 2018 (the “Notice”), refusing his application for non-refoulement protection.

2.  The Applicant had requested an oral hearing and an oral hearing on 27 January 2025 was scheduled for him.  Notice of the hearing was sent to him by post to his address as discovered from the Immigration Department on 31 December 2024.  The notice has not been returned through the post.  He did not appear at the hearing.  On the morning of the hearing, a court staff was able to reach him on his mobile phone.  He confirmed the address to which the notice was sent was correct but claimed he had not received the notice.  Another hearing on 17 March 2025 was re-scheduled for him. 

3.  Again, he did not appear at the re-scheduled hearing.  Again, a court staff was able to reach him on his mobile phone in the morning of the hearing. He acknowledged having received the notice of hearing, but said he will not attend because he had to report his recognizance at the Immigration Department.  He was advised that he had to attend the hearing and to report his recognizance in the afternoon.  The staff even offered to confirm his attendance at the hearing with the Immigration Department for him, if necessary.  He did not confirm if he would or would not attend the hearing. His name was called at 11:33 inside and outside the court room.  He did not appear. 

4.  The notice of the re-scheduled hearing had been sent to him by post on 3 February 2025.  He had about six weeks’ advance notice of the hearing for him to make arrangements for attending the hearing, including to re-schedule the hearing if necessary.  He did not do so.  He had been warned in the notice that if he did not appear he will be deemed to have waived his right to make oral submissions at the hearing and the Court will deal with his application according to the paper already placed before the Court.  He had been offered assistance to enable him to report his recognizance in the afternoon or on another day.  His refusal to attend is inexcusable.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles, his knowledge of the consequence of his non-attendance and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  Accordingly, the Court proceeded to determine his leave application on paper.

Background

5.  The Applicant is a Zambian national.  He last entered Hong Kong on 5 May 2017 as a visitor.  He surrendered to the Immigration Department on 4 August 2017.  A removal order was issued against him on 2 January 2018.  Then, on 15 January 2018, he made a non-refoulement claim.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims, if returned to Zambia, he will be harmed or killed by his paternal uncle who wanted to take over his land.

7.  The Applicant, now aged 30, was born and raised in Chingola, Zambia.  He had received 18 years of formal education.  He is single.  Both of his parents have passed away.  He has a brother, but has lost contact with him since late 2016 or early 2017.

8.  The Applicant’s father died young.  The Applicant’s grandfather had a large piece of farmland.  Prior to his death, his grandfather distributed his farmland so that the Applicant and his brother would inherit their deceased father’s share of the farmland (the “land”) on behalf of their deceased father, while their uncle would have the rest.  When their grandfather died, the Applicant and his brother were still minors.  His uncle farmed on the land and leased it to generate income to pay for the Applicant’s and his brother’s education.

9.  From 2014 to 2016, the Applicant studied medicine at Changsha Medical University (“CMU”) in China.  His uncle paid for his studies.  At that time, there were already arguments between the Applicant and his uncle over his tuition fees and expenses in China.  In 2016, his brother told him that his uncle decided to send him less money because his uncle had already paid a lot in the past year.  Since the Applicant could not settle the outstanding tuition fee for the second year, he was not allowed to take exams.

10.  In mid-2016, the Applicant called his uncle and asked him to pay his tuition fees from the income derived from the land, and that he could not continue his studies if the tuition fees were not settled.  His uncle became furious and said he was using too much money for his study.  His uncle said he would cease financing his studies and threatened to kill him if he returned to Zambia.  After the call, his uncle stopped sending him money.  The Applicant was forced to terminate his studies at CMU.  He also learnt from his brother that his uncle was very angry with him and threatened to kill him.  He asserted that he and his brother would face imminent threats from his uncle, as his uncle wanted to keep the ownership of the land and the income from the land for himself.

11.  In autumn 2016, the Applicant was admitted to Zhejiang Normal University (“ZNU”) in Jinhua.  He was forced to quit his studies again in early 2017, as he could not obtain money from his uncle to pay the tuition fees.  Sometime between late 2016 and early 2017, while he was in Jinhua, his brother told him that his uncle had decided to get rid of them both so that his uncle could occupy the land, and reminded him not to return to Zambia because his uncle would certainly cause harm to him.  His brother did not mention if he had encountered any threats from his uncle.  He lost contact with his brother and did not receive any news from Zambia thereafter.

12.  Having quit ZNU, the Applicant could not renew his student visa in China.  Hence, he came to Hong Kong.  He claimed that state protection was not available in Zambia because the police in Zambia is corrupt.  He does not believe internal relocation feasible, as he does not have the financial resources to move to other parts of Zambia.

The finding of the Board

13.  Having considered the papers, the country of origin information (“COI”) and the case of ST v Betty Kwan & Ors[5], the Board considered it appropriate to determine the appeal without a hearing, pursuant to section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.

14.  On the Applicant’s evidence, his uncle merely threatened to kill him verbally.  The Applicant had not suffered any physical harm.  In addition, despite he learnt from his brother during their call between late 2016 and early 2017 that his uncle would definitely harm him upon his return to Zambia, the fact is that his uncle only made verbal threats, and he was not physically harmed at all.  The Board did not accept any harm or suffering he experienced was serious.

15.  On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Zambia.  However, the COI also suggested that there are objective indications that the Zambian government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police.  Hence, the Board found reasonable state protection will be available to the Applicant in Zambia.  It was the Applicant who chose not to report the case to the Zambian authorities.  It found his belief that the police would not render any assistance to him because he did not have money to bribe them was his subjective deduction unsupported by any evidence.

16.  The Board found the dispute between the Applicant and his uncle was domestic in nature and no public or government officials were involved.  It also found his feared ill-treatment was not on account of race, religion, nationality, membership of a particular social group or political opinion protected under the Persecution Risk ground.  For the above reasons, the Board concluded that the Applicant is not entitled to protection under Persecution Risk ground.

17.  As the Applicant had not suffered any physical harm from his uncle, the Board did not accept there was substantial ground to support a finding of risk of torture from his uncle if he is refouled to Zambia or that the ill-treatment he would likely receive from his uncle would attain a minimum level of severity.  Based on these findings and those in respect of Persecution Risk ground, the Board found the Applicant is not entitled to protection under BOR 3 Risk ground.

18.  Based on the finding in respect of the above two grounds, the Board found the ill-treatment likely to be suffered by the Applicant on his return to Zambia would not fall within the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle him to protection under Torture Risk ground.

19.  Lastly, the Board found there was no evidence to support a claim under BOR 2 Risk ground.

20.  For all these reasons, the Board dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

21.  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[6].

Grounds for judicial review

22.  The Applicant did not advance any grounds of judicial review in his Form 86.  In his supporting affirmation, he repeated the gist of his claim and that he would be harmed or killed if refouled to his home country.  He asked the Court to give him more time, as his problem remained unresolved in Zambia. He objected to the immigration officer’s finding on feasibility of internal relocation because he had no work experience, or property and no way to earn a living.  He also stated that the authorities would not offer him assistance and he feared that they would treat his case as a family matter and would find hitherto he had suffered no physical pain or harm.  In essence, he is challenging the finding of fact by the Board, which is not permissible in an application for judicial review, save for errors of law procedural unfairness or irrationality in the Decision.

Overall scrutiny

23.  Having rigorously examined the Decision, the papers 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted.  He could not have any complaint for the Board accepting his account on which his claim was based.  It was also on that basis that the Board found his feared ill-treatment was not well-founded and did not fall within the protection under the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of law, they are absolute correct.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save for errors of law, procedural unfairness and irrationality.  The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

24.  For the above reasons, the leave application is refused.

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 torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 115/2013 at paragraphs 20 to 54

[6] [2018] HKCA 524 at [14(1)]