Mendame Christian v. Torture Claims Appeal Board
Read the full judgment text of HCAL 80/2020 on BabelCite. This High Court CFI judgment was delivered on 30 April 2025.
1. By way of Form 86 dated 6 January 2020 and filed on 7 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 5 December 2019. It is clear that the applicant was referring to the decision of the Torture Claims Appeal Board ("the Board") dated 5 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 4 cases
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HCAL 80/2020 [2025] HKCFI 1669 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 80 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 6 January 2020 and filed on 7 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 5 December 2019. It is clear that the applicant was referring to the decision of the Torture Claims Appeal Board ("the Board") dated 5 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board decided that the applicant did not make out his case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), refused the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 January 2019 and affirmed the Director’s said decision. Amendments 3.In Form 86, the applicant named the putative respondent and the putative interested party wrongly, when the putative respondent should be the Board and the putative interested party should be the Director. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”. The applicant’s case 4.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 5.In sum, the applicant claimed for non-refoulement protection because he feared being killed or harmed by the murderers of his employer, as he witnessed the murder. He also feared being killed or harmed by his employer’s brother, who accused the applicant of murdering his brother. Oral hearing 6.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 27 March 2025. 7.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 8.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 10.The applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 7 January 2020. Discussion 11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 12.Since the applicant did not advance any ground for judicial review, the Leave Application could be dismissed for this reason alone. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities. 13.In assessing the appeal by the applicant, the Board held an oral hearing on 29 August 2019. After due consideration of the law and the evidence as presented by the applicant, the Board found the applicant not to be a wholly credible, truthful and reliable witness, and his explanations for the inconsistencies in his evidence disingenuous and unconvincing. The Board concluded that the applicant was not at risk of harm and he was not entitled to non-refoulement protection under any of the applicable grounds. 14.The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal. This court finds no reason to usurp the fact-finding power vested in the Board. 15.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 16.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 17.For reasons aforesaid, the Leave Application is dismissed. Dated the 30th day of April 2025
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
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Cases cited in this judgment