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HCAL 3614/2019
[2025] HKCFI 2826
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3614 of 2019
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Nkonge Dauda |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) dated 4 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 14 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 3 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).
Background
2. The Applicant’s personal background, the incidents alleged in support of his non-refoulement claim that he would be harmed or killed in Uganda by reason of his religious conversion from Islam to Christianity, and the immigration and procedural history, etc. can be found in the Board’s Decision. It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein.
Discussion
3. First of all, in view of the seriousness of the issues involved, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).
4. As can be seen, after considering the totality of the evidence, the Board did not regard the Applicant’s claims of harm by his father or the Muslims sent by his father in Uganda credible. The Board found that he had not established “substantial grounds” to support the conclusion that he faced a real risk of ill-treatment if he returned to Uganda. The Board was of the view that he had not presented coherent bases for a claim that his father would know if he returned, or that his father would locate him and send someone to kill him. Based on these findings of fact, and applying the relevant law and legal principles, the Board was not satisfied that there was Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk and had therefore rejected the Applicant’s non-refoulement claim.
5. The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision. He has failed to identify any grounds for judicial review in this case (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). He has also completely failed to meet the required standard of disclosing all relevant information in an ex parte application (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35). It is insufficient for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh in the absence of any valid public law grounds.
6. Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review. The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).
7. For these reasons, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and no leave should be granted.
Conclusion
8. I accordingly make an order that the Leave Application be dismissed.
Dated the 3rdday of July 2025
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(Seline Sze)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 03/07/2025
Nkonge Dauda
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 03/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13491/18/9/252/U91
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2260/18
(Formerly RBCZ 12312/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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