MEGALANE KAGISO ABRAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3139/2019

[2025] HKCFI 3458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3139 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 2 July 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 39, is a national of South Africa. On 29 October 2017, he came to Hong Kong as a visitor. He overstayed and was arrested by police, which transferred him to the Immigration Department. He lodged a non-refoulement claim on 3 December 2017 on the basis that, if refouled, he will be harmed or killed by government agents because he changed his political allegiance to the opposition party, the African National Congress. 

5.  According to the applicant, he and his family began to support the opposition party in late 2016. Since then, he and his family members were followed by secret government agencies. On 2 occasions, a vehicle attempted to run on him, but he escaped. He was attacked by his enemies with punches and kicks. His mother and brothers were all killed, presumably by the government agencies. [link to the Board’s Decision, if available]

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the risk of being harmed or killed by his enemies if he returns to South Africa is low; that state protection will be available and internal relocation is viable.

The Board’s Decision

8.  The applicant appealed the Notice of Decision dated 29 June 2018 (“Director’s Decision”) to the Board. On 14 June 2019, the Board conducted an oral hearing for his appeal and had made comprehensive enquiries on the facts of his claim.

9.  Having considered the evidence, the Board found that his evidence was confused, inconsistent and contradictory [36]-[43]; that his evidence was not reliable [44]; that it did not accept his evidence in support his claim [49]-[50]. The Board therefore rejected his claim on all the applicable risks. It dismissed his appeal and confirmed the Director’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003139_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, the applicant said that he disagreed with the Board’s Decision and he did not want to go back to South Africa. He did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

15.  The applicant has raised no valid ground to challenge the Board’s Decision.

16.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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