Zanre Boulou Bianca v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3855/2019

[2025] HKCFI 1623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3855 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) dated 15 November 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 31 January 2019 in refusing the Applicant’s non-refoulement protection claim. She named the Department of Immigration as the proposed respondent and the TCAB as an interested party.

2.I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

3.The Applicant requested for a hearing of this application but she was absent. Although the Notice of Hearing sent to her was eventually returned, according to the calling record, my clerk successfully contacted the Applicant by phone the week before the hearing and confirmed the hearing date with the Applicant. I shall therefore deal with this application on paper.

Background

4.The Applicant is a national of Burkina Faso and also had spent years living in Nigeria. She seeks non-refoulement protection on the basis that she will be harmed or killed by family members due to religious reasons, and harmed by her husband due to financial disputes. 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

5.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).

6.In her affirmation filed in support of the Form 86, the Applicant only reiterated that it was not safe yet for her to be returned and that allegedly 755 people of the same religious affiliation as her in her town were killed in October 2019. However, there was nothing provided by way of support; as indeed not even the source of the information was given. I shall therefore not admit such new “evidence” as it falls short of the credibility requirement in Ladd v Marshall.

7.She did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.As can be seen from the TCAB Decision, all the available evidence was presented to the TCAB [18-21, 24-28], after careful consideration, the TCAB came to the conclusion that the Applicant had not made out the allegations [21].

9.The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying the correct legal principles in each instance [6-17], and came to the conclusion that none was made out [29-41]. The TCAB also came to the conclusion that state protection and internal relocation were available to the Applicant, be it Burkina Faso or Nigeria [24-29, 42-48].

10.As such, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, 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.

Dated the 12^th day of May 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

Form CALL-1