MADUKA CHIDIEBERE FRANK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 991/2020

[2025] HKCFI 4349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 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;

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 May 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 8 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 9 November 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000991_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that he would be harmed or killed by his paternal uncle (i.e. father’s brother) due to the land dispute with him.  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.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 3 July 2025. The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.  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.

5.  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.   

6.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant stated that the land dispute and threats were still continuing. The law enforcement agency would not be able to protect people and that it would be difficult for him to relocate.

8.  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 found that the applicant had never been subjected to torture or physical violence and never suffered any physical or mental ill-treatment.  The Board concluded that there was no real risk of harm. The Board also found that reasonable state protection would be available.  Thus, the Board rejected the claim.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to find that the applicant failed to establish that his past ill-treatment failed to attain a minimum level of severity after having accepted the applicant’s account regarding the land despite and that there were no serious injury from the past two incidents of attacks. Based on the evidence before the Board that there was no evidence that the applicant’s was still looking for the applicant and the lack of state involvement, I find that the Board was entitled to find that the applicant would not face any risk of harm.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision either on paper or at the hearing.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

10.  The application for leave to apply for judicial review 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