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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 21 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 11 November 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 7 May 2018.

2.  The Applicant requested for a hearing of this application and he attended the same.

Background

3.  The Applicant is a national of Uganda.  In essence, he seeks non-refoulement protection on the basis that he would be harmed or killed by his 2 stepbrothers because they had a land dispute with the Applicant.  The Applicant claimed that his mother died in the hands of the stepbrothers.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In summary, the Applicant raised the following grounds in the Form 86 (some of the points are repeated in his affirmation in support):

(1)   The TCAB Decision was unreasonable, irrational or a result of procedural unfairness;

(2)   The TCAB unlawfully fettered his discretion;

(3)   The TCAB failed to meet the greater care and duty owed to a self-represented claimant;

(4)   The Applicant was not given a fair opportunity to make oral or written submissions;

(5)   The TCAB relied on sources of news that was unofficial, outdated or merely hearsay;

(6)   The Applicant remained in danger.

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-77] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds [126-133, 138-142, 144, 149-157] and properly considering Country of Origin information [56-57, 135], the Applicant’s allegations were insufficient to make out any of the applicable grounds [134-137, 143, 145-148, 158-160].  The TCAB specifically held that the Applicant’s evidence was incredible and unreliable [90, 96-97, 104, 110, 119-121].  There were conclusions that the TCAB was fully entitled to come to.  There was accordingly no factual or evidential basis to support the Applicant’s claims [122-125].

9.  It is clear to me that the TCAB properly and carefully considered the Applicant’s claims and gave adequate reasons for its decision.  I am also unable to detect any procedural unfairness; for example, the TCAB duly considered the Applicant’s written submissions [8-9], and the Applicant was given a full opportunity to explain any inconsistency in his evidence [84].  In my judgment, the grounds advanced by the Applicant are no more than bare assertions and are wholly unsubstantiated, especially in view of the TCAB’s rejection of the underlying factual premise of the Applicant’s case.

10.  At the hearing the Applicant also informed me that he remained in danger, as evidenced by the death of his mother.  He was also receiving medical treatment in Tuen Mun.  These matters however have nothing to do with the issues I need to deal with, namely the correctness (in the public law sense) of the TCAB Decision.

11.  The Applicant also told me that he did not understand why his non-refoulement claims were not accepted.  The full reasons have indeed been set out in the TCAB Decision, in particular as to why the Applicant’s factual account was not accepted (and it is a finding that the TCAB was entitled to reach).

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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