Amadou Mahaman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 847/2020

[2025] HKCFI 3855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 847 of 2020

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 from the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1．  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2．  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Niger. By a Form 86 filed on 8 May 2020 (“Form 86”), and a supporting affirmation also dated and filed on 8 May 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”)) dated 27 April 2020 (“TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.The Applicant sought an oral hearing of his application. He said he had nothing to add. I have amended the Form 86 to reflect the identity of the proper Putative Respondent.

Background

3.The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. In essence:

a.  The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Niger, he would be harmed or killed by one Ali or his people;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 19 December 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which heard the matter on 16 March 2020, with the Applicant being represented by the Duty Lawyer Service; and

d.  The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

Legal Principles

4.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

7.No grounds for judicial review and no relief are set out in the Form 86 or the Affirmation in relation to the TCAB Decision, in particular of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test. The Applicant has only said in the Affirmation that he disagrees with the decision of the TCAB. I do not see that such is relevant to the issues before me or assists his application for leave. After all, judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (see the authorities cited in Paragraph 5 above).

8.However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

9.The TCAB/NRCPO began by setting out the Applicant’s nationality, date and place of birth, and immigration and procedural history (Paragraphs 1 to 6). This was followed by relevant principles relating to the four relevant grounds of risk (Paragraphs 7 to 18).

10.The decision-maker then outlined the Applicant’s case, the conduct of the oral hearing, and its conclusions that on the facts and evidence before it the Applicant had not made out a case where he needed non-refoulement protection, given that it doubted that the Applicant’s mother had actually been killed by Ali, and having regard to the lack of infliction of any injury by Ali on the Applicant as well as to Ali’s background and behaviour (Paragraphs 19 to 23).

11.The TCAB/NRCPO then went on to assess and dismiss the existence of each of the four types of risk. It began by observing with reference to relevant COI that reasonable state protection was available if he were refouled (Paragraphs 24 to 28). It then moved on to assess that none of the four types of risk were established due to the lack of a relevant risk of harm (which was based on its earlier assessment of the evidence), the availability of state protection, and in relation to Persecution Risk the lack of a Convention reason (Paragraphs 24 to 45). The decision-maker also found that internal relocation was possible to other parts of Niger (with reference to the cities of Maradi or Zinde) and was not unduly harsh, given Ali’s characteristics including his reach, and the Applicant’s circumstances (Paragraphs 46 to 50). He accordingly dismissed the appeal/petition (Paragraphs 51 to 52).

12.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the conclusions reached in the TCAB Decision, and hence sufficient to justify the grant of leave. The findings regarding and relating to the risk of harm (including as to the attendant underlying evidence and facts), state protection, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, are all matters primarily within the province of the decision-making body. Moreover, and more importantly, the conclusions reached as to the existence of each of the four relevant types of risk cannot be impeached or vitiated given the findings as to the availability of state protection and internal relocation.

13.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

14.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other order above.

Dated the 5^th day of September 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