Nkonge Dauda v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3614/2019

[2025] HKCFI 2826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3614 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 oral submissions by the Applicant in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) dated 4 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 14 November 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 3 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

Background

2.The Applicant’s personal background, the incidents alleged in support of his non-refoulement claim that he would be harmed or killed in Uganda by reason of his religious conversion from Islam to Christianity, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein. 

Discussion

3.First of all, in view of the seriousness of the issues involved, I have reminded myself to consider the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

4.As can be seen, after considering the totality of the evidence, the Board did not regard the Applicant’s claims of harm by his father or the Muslims sent by his father in Uganda credible.  The Board found that he had not established “substantial grounds” to support the conclusion that he faced a real risk of ill-treatment if he returned to Uganda.  The Board was of the view that he had not presented coherent bases for a claim that his father would know if he returned, or that his father would locate him and send someone to kill him.  Based on these findings of fact, and applying the relevant law and legal principles, the Board was not satisfied that there was Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk and had therefore rejected the Applicant’s non-refoulement claim.    

5.The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The Applicant is unable to show that there was any error of law, procedural unfairness or irrationality in the Board’s Decision.  He has failed to identify any grounds for judicial review in this case (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). He has also completely failed to meet the required standard of disclosing all relevant information in an ex parte application (see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35). It is insufficient for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh in the absence of any valid public law grounds.    

6.Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review.  The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

7.For these reasons, the Applicant’s intended challenge of the Board’s Decision is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and no leave should be granted.   

Conclusion

8.I accordingly make an order that the Leave Application be dismissed.

Dated the 3^rdday of July 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