OMAR NASSOR JUMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 476/2020

[2025] HKCFI 2399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 476 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 31 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 12 March 2020 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 6 August 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000476_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Immigration Department as the proposed respondent, and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended.

3.  The basis of the applicant’s claim was that he would be harmed or killed by members of the ruling party in Tanzania, known as the Chama Cha Mapindizi (“CCM”), due to his support for the opposing Civic United Front (“CUF”). He also feared harm or ill-treatment by the Tanzanian government for the same reason. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 29 May 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his supporting affirmation for his Form 86, the applicant stated that he was not given enough time to answer the Director’s questions and he was not in a good condition to talk to the Director at the time and his lawyer did not assist him. Thus, he requested for a new interview. However, he did not raise any specific grounds relating to the Board’s Decision.

8.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that he would like to continue to remain in Hong Kong. This court then explained to him that his proposed grounds for the judicial review did not relate to the Board’s Decision, and asked him whether he had anything to say regarding the Board’s Decision. Despite the court’s repeated explanations, the applicant only stated that he wanted to stay in Hong Kong.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, whilst the Board found that the applicant’s evidence was on the whole coherent and internally consistent, it however found that there was no real risk of harm. This is because the country of origin information (“COI”) indicated that there seemed to be little evidence of CUF members being targeted since the 2015 elections. Additionally, the Board found that since 2016, the government had taken steps to improve law enforcement, human rights and anti-corruption measures. The Board also found that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in its Decision. The applicant’s written grounds do not relate to the Board’s Decision. Neither was the applicant able to advance any grounds nor submissions in support of the Leave Application. I am not satisfied that the applicant has shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

11.  The Form 86 is amended on the court’s own motion.

12.  The Leave Application be dismissed.

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