EBAGUA DESTINY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 160/2020

[2025] HKCFI 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 160 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 oral submissions by the Applicant in open court;

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

2.  The Leave Application be dismissed.

Observations for the Applicant:

Background

1.  By prescribed Form 86 filed on 15 January 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 5 December 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 21 November 2017 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000160_2020_files/the_Board's_Decision.pdf

2.  The applicant’s claim based on a fear that if refouled, he would be harmed or killed by his paternal uncles and the Boko Harem group. 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.

3.  In the Form 86, the applicant named the Director as the proposed respondent and the Immigration Department as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  As the applicant has not requested for an oral hearing, this court will dispose of the Leave Application on paper.

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. 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 has identified no such grounds in his Form 86. In the applicant’s supporting affidavit, he provided a number of grounds in exhibit 5 to the affidavit. Broadly, the applicant contended that the Board:

(i)  was unreasonable and failed to apply the law;

(ii)  did not meet the high standard of fairness;

(iii)  did not consider BOR 3 risk and;

(iv)  only relied on COI and some general information, both of which were not facts.

6.  The applicant’s stated grounds are mere general grounds without any specification of errors. The applicant’s assertions that an inheritance of land in his home country required no documentary evidence, that he could not rely on state protection due to the massive corruption, and that Boko Haram had killed thousands of Christians were mere assertions.

7.  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, after having taken into account the lack of corroboration of the applicant’s evidence and the relevant COI, found that there was no basis to support the applicant’s claimed fear of risk of ill-treatment if refouled whether in the hands of his uncles or by Boko Haram. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

Orders

9.  The Form 86 is amended on the court’s own motion.

10.  The Leave Application 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