NDUNGU GEORGE NDEGWA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 32/2022

[2026] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 32 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, adding the Torture Claims Appeal Board/ Non refoulement Claims Petition Office as the Putative Respondent and naming the Director of Immigration as the Putative Interested Party.

2.   Extension of time for the application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 23 August 2021 be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 January 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Director of Immigration dated 30 December 2020 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).  However, the Applicant has exhibited the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 23 August 2021 (the “Board’s Decision”),[1] albeit referring to it as the Director’s Decision.

2.  Therefore, it would appear that the Leave Application is intended to be directed against the Board’s Decision.  In particular, since the Applicant had already appealed the Director’s Decision, the Board’s Decision effectively supersedes the Director’s Decision.[2]  Hence, the Director’s Decision is not a decision which is susceptible to judicial review.  I have accordingly amended the Form 86 on my own motion to reflect this.

3.  The Applicant did not attend the oral hearing.  I have therefore considered the Leave Application in respect of the Board’s Decision based on the materials available before me.[3]

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[4] to which is included below, are also adopted herein.

Discussion

5.  The Leave Application was lodged out of time under Order 53 rule 4 of the Rules of High Court, Cap 4A.

6.  In considering whether to extend time, the Court shall have regard to (1) the length of delay; (2) the reason for delay; (3) the merits of the intended application; and (4) any prejudice that may be occasioned to the applicant if leave is refused as against the prejudice to the respondent and the public administration if leave is granted and (5) question of general public importance.[5]

7.  First, the delay in question is around 2 months.  The Applicant has not applied for an extension of time nor provided any explanation for the delay in support of the Leave Application.

8.  Second, regarding merits, I am not persuaded that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospect of success. [6]

9.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[7]  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.  As matter stands, the Applicant has failed to identify any valid or effective public law grounds.[8]

10.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law.  Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

11.  The primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[9]

12.  The Board was acutely aware of the Applicant’s claim that if he were to return to Kenya, he would be tortured or even killed by his family for his resumption to Christianity and being a bisexual.  He also claims that he would be physically assaulted or killed and facing criminal prosecution for his bisexuality in Kenya.  The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials.  It was entitled to find that there was no evidence adduced to show that (1) the Applicant’s family was incited or supported by any public officials or government bodies in punishing the Applicant by reason of his religion conversion or sexual orientation; (2) any Kenyan police or officials had been biased against the Applicant or that he was targeted by the state or its agents; (3) the laws against same sex orientation in Kenya would cause severe ill-treatment or serious harm to the Applicant.  It was also entitled to find that (1) the constitution lays down that there is no state religion and prohibits religious discrimination; (2) despite threats and pressure from his own family members, he was not harmed by any of them and he managed to stay safe separated from them with various decent jobs; (3) reasonable state protection is available; and (4) internal relocation is viable.

13.  There is simply nothing to indicate the Board had failed to take into account any relevant matters.  I also do not find any error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

14.  Finally, I discern no prejudice in refusing to allow the Applicant to proceed with an application that is, in any event, wholly unmeritorious.  Conversely, allowing him to do so would disrupt and undermine the proper administration and cause prejudice to the Putative Respondent.  For completeness, I also do not accept (if so contended by the Applicant) that the matter raises any question of general public importance requiring determination by the Court.

Conclusion

15.  I see no good reason to extend time for the Applicant to apply for leave to seek judicial review.  I accordingly dismiss the Leave 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