ODERO MOSES RAMINYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2651/2019

[2025] HKCFI 3659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2651 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 oral submissions by the Applicant in open court;

1.  Leave to amend the Form 86 be granted; and

2.  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 11 September 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 18 August 2019. He named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the proposed respondent and identified the decision in respect of which relief is sought as “the appeal was refused and the decision of the Director was confirmed 18/08/2019”. Enquiries with the Board revealed that the Board had made a decision in respect of the Applicant in the non-refoulement context dated 8 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection. Piecing these information together, it is obvious that the Applicant’s intention was to seek judicial review of the Board’s Decision dated 8 August 2019 and that he was mistaken about the date of the Decision. On the Court’s own motion, his Form 86 is amended by identifying the Board’s Decision dated 8 August 2019 as the decision in respect of which relief is sought to give effect to his true intention.

2.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court is satisfied that the application could be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Kenyan national. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims that if returned to Kenya, he will be killed by his uncle’s wife who wanted to take over his father’s land.

Grounds for judicial review

4.  In his supporting affidavit, the Applicant stated that he believed the Director’s decision was not fair because his life would be in danger if returned to his home country. This ground is apparently directed at the Director’s decision, which is not the subject matter of this leave application. Furthermore, while the Decision of the Board is reviewable by judicial process, the decision of the Director is not because there are established statutory procedures of appeal to the Board against the Director’s decisions and the Applicant has invoked those procedures. The Director’s decision has been superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. In the circumstances, the Court considered his affidavit as being directed at the Board’s Decision, which upheld the Director’s decision. If so, the Applicant would be seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to Kenya. This is also not permissible in an application for judicial review: see Nupur Mst v Director of Immigration[3]. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

5.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds of application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism; the burden of proof, the standard of proof and quoted relevant precedents in support of its decision. The Board assessed the Applicant’s evidence carefully, tested it against common sense, inherent consistency and inherent probability. It found him incredible. It gave full reasons for its finding. It did not accept the Applicant’s claim that his aunt or her affiliates had threatened or tried to harm him in the past as he claimed or will harm him if he returns to Kenya. It was on that basis that the Board found he had failed to prove, even to the low standard of proof required, that he would be in danger of being subjected to any of the proscribed risk of harm. As the Applicant bears the burden of proving his claim, such a finding is fatal. These are mixed finding of law and of fact. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are within the realm of the Board, which the court in an application for judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. The Court could detect no errors of law or procedural unfairness in the Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision could not have been faulted. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

6.  For the above reasons, on its the Court amended the Applicant’s Form 86, but the Applicant’s leave application as amended 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