MWAMPIKI SOPHIA MEDSONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1502/2020

[2026] HKCFI 1427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1502 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 the Applicant being absent in open court;

1.  The Form 86 be amended on the Court’s own motion by naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent, and by naming only the Director of Immigration as the Putative Intended Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 16 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 16 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (which was exhibited to the Affirmation) of the Torture Claims Appeal Board (“TCAB”) / Non-Refoulement Claims Petition Office (“NRCPO”) dated 3 July 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of her application. However, she did not respond to attempts by court staff to contact her via mobile phone on 29 August and 1 September 2025, and did not appear at the hearing scheduled on 4 September 2025. The Notice of Hearing issued by post dated 7 August 2025[2] was returned to the High Court on 5 September 2025 (one day after the scheduled hearing) with the indication “No Such Address”. By giving an apparently inaccurate and/or ineffective address to the court, she has failed to discharge her duty to give the court an address to which correspondence or notice can come to her attention in a timely manner (Islam Raja Rais v Director of Immigration, HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439). In the circumstances I have dealt with her application on the papers.

3.  I have amended the Form 86 on my own motion to reflect the identities of the proper Putative Respondent and Putative Interested Party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

4.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary:

(1)  On 19 October 2018, the Applicant’s claim was deemed to be withdrawn. On 5 July 2019, the Applicant requested that such be re-opened. The Director then made a decision dated 9 September 2019 not to re-open the Applicant’s non‑refoulement claim (“Director’s Decision”);

(2)  The Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing on 19 June 2020; and

(3)  The TCAB/NRCPO handed down the TCAB Decision dated 3 July 2020, which dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The Form 86 and the Affirmation do not contain any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB Decision set out the events prior and leading up the Director’s Decision and the hearing before the TCAB/NRCPO, the basis of the Applicant’s claim and her grounds of appeal, and factors and evidence that it had considered. Ultimately, it considered that she had not been able to provide cogent evidence in support of her grounds of appeal (i.e. her claimed long-term mental illness and attendant consequences), and hence to establish that it was due to circumstances beyond her control that she had not been able to return a completed torture claim form as required. The appeal was hence dismissed and the Director’s Decision was confirmed.

11.  The question of whether sufficient evidence had been provided to reopen the claim was a matter for the Director, and on appeal the TCAB/NRCPO, to decide. It is not for this court to substitute its own opinion on that question (Mughal Zia Ur Rehman [2021] HKCA 1622 at §§20-24; Amarjit Singh [2022] HKCA 1866 at §§24-25). I do not see any recognised public law basis (nor has one been identified by the Applicant) to interfere with the decision-maker’s approach or conclusions reached in relation to such issue, particularly given the nature and extent of the evidence relating to her grounds of appeal that was made available to and considered by the decision-maker. I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

12.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed, and have made the other orders above.

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