MBOWETO UWESU MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL3865/2019

[2025] HKCFI 1551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3865 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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 27 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the Torture Claims Appeal Board (the “TCAB”) dated 14 November 2019 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 28 December 2018 refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent and the DOI as an interested party.

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

Background

3.  The Applicant is a national of Tanzania. He seeks non-refoulement protection on the basis that he will be harmed or killed by people of different political affiliation if he is returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case 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. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of the Form 86, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

6.  At the hearing, the Applicant only stated that the problem “has become bigger”.

7.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB [27-47], and after careful consideration the TCAB came to the conclusion that the Applicant’s allegations were not made out [48-51].

8.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying the correct legal principles to apply in each instance [13-41], and came to the conclusion that none was made out [52-57].

9.  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.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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