MIREMBE RITAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3823/2019

[2025] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3823 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 6 December 2019 (the “TCAB Decision”), which confirmed the decision of the Director of Immigration (the “DOI”) dated 29 August 2018 refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing of this application and she attended the same. When asked if she had anything to say on top of the documents filed, she confirmed that there was not.

Background

3.  The Applicant is a national of Uganda. She seeks non-refoulement protection on the basis that she will be killed by her husband under a forced marriage if she is returned. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In her affirmation filed in support of the Form 86, the Applicant raised the following complaints against the TCAB Decision :-

5.1.  She was not given an opportunity to put forward his submissions in an oral hearing or invited to submit written submissions;

5.2.  The TCAB relied on news which was not from officially recognised sources, or simply hearsay, and the TCAB’s conclusion that the Applicant could safely return to Uganda was therefore groundless speculation;

5.3.  The TCAB relied on cases that were fairly outdated.

6.  As to the first complaint, it is factually wrong: the TCAB in fact held an oral hearing for the Applicant’s appeal and in fact recorded what she said thereat [10, 12, 15, 21, 24, 27, 60].

7.  As to the second complaint, the COI referred to was based on Country Report prepared by the US Department of State and I see no basis at all to suggest that it was not from “officially recognised sources”, or in anyway unreliable/weightless. In any event, the conclusion reached by the TCAB was not only based on the strength of the COI but rather on the weakness/incredibility of the Applicant’s case and evidence [30-31]. The analysis of the Applicant’s case and evidence was comprehensive and the Applicant was given full opportunity to explain.

8.  As to the third complaint, the TCAB set out in full the applicable principles to all four applicable grounds under the USM, the assessment approach and correctly applied them in coming to the relevant conclusions [36-58]. There is nothing in terms of law cited that was “outdated” as far as I can see.

9.  In any event, the TCAB also analysed and concluded that internal relocation was available to the Applicant [59-62].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision as alleged or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the 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