KIMWAGA MBARAKA ALOYCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 995/2020

[2025] HKCFI 4909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 995 of 2020

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

Following:

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

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 25 May 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 15 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 31 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/HCAL000995_2020_files/the_Board's_Decision.pdf

2.  In the 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, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by his foster parents and cousins for having converted from Islam to Christianity. 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 scheduled a hearing on 19 August 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and 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.  The applicant’s Form 86 contained no such grounds at all.  In his supporting affirmation, the applicant alluded to an officer who was not friendly to him at the interview, and requested to ask the court to look at his case afresh.

7.  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 was not satisfied with the Board’s Decision because he was not able to explain everything to the Board at the hearing.  He further stated that the Board made mistakes on internal relocation because people who wanted to harm him could easily find him.

8.  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, the Board found that the applicant was not a witness of truth.  The Board concluded that the applicant had fabricated his claims in relation to his religious conversion and the harm he suffered at the hands of the foster family.  The Board rejected the applicant’s evidence regarding his claim of conversion; his love relationship with a Christian girl; and the attempts to poison him by the foster family.  In conclusion, the Board found that the applicant would not face any real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  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.  I am satisfied that the Board was entitled to conclude that there was no risk of harm after having found that the applicant’s claims were fabricated.  The applicant has not provided any grounds, whether written or oral, to support the Leave Application.  The applicant has not 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

10.  The Form 86 be amended on the court’s own motion.

11.  The applicant’s application for leave to apply for judicial review 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