Ali Issa Ousmane v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 853/2020

[2025] HKCFI 3856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 853 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 the Applicant being absent in open court;

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

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

Observations for the Applicant:

Introduction

1.The Applicant is a national of Chad. 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 for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”)) dated 15 April 2020 (“TCAB Decision”)[1].

2.The Applicant sought an oral hearing of his application. Shortly before the oral hearing, the court was informed that the Applicant had been granted stay in Hong Kong on 7 December 2021.

3.As the Applicant did not appear at the oral hearing, I have hence dealt with his application on the papers.

Background

4.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 returned to Mozambique he would be harmed or killed by his enemies who were the four sons (“Four Sons”);

b.  His 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 (“the Director”) in a decision dated 21 August 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which heard the matter on 16 July and 20 September 2019, and on which dates the Applicant was 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

5.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).

6.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).

7.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

8.The Affirmation does not contain any ground for judicial review. The only ground for judicial review specified in the Form 86 is that “The [TCAB Decision] is substantially unfair”. However the Applicant has not referred to any underlying facts or matters establishing why, how, and where such complaint arises in relation to the TCAB Decision. It hence does not amount to a proper, or properly particularised, ground of judicial review[6], such as 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 in, the TCAB Decision.

9.Nevertheless, 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.

10.The TCAB/NRCPO set out the Applicant’s procedural and immigration history, outlined the documents in the Hearing Bundle, and the circumstances in which two hearings took place (Paragraphs 1 to 7). It then referred to the law relating to the four relevant types of risk and internal relocation (Paragraphs 8 to 34).

11.The decision-maker then set out, in great detail, the Applicant’s evidence and claims adduced to the Director (Paragraphs 35 to 103) and the evidence and claims before, and various exchanges with, the TCAB/NRCPO on salient topics such as the underlying evidence and COI (Paragraphs 104 to 220).

12.The decision-maker then moved on to outline his conclusions having regard to relevant COI (Paragraphs 221 to 228), on the evidence and the Applicant’s claims, and on the Applicant’s credibility (Paragraphs 229 to 253) before making material findings of fact taking into account all of the matters before him, in relation to which he did not accept the Applicant’s core factual claims underlying his claim for non-refoulement (Paragraph 254).

13.The TCAB/NRCPO then went on to assess, given and in the context of its findings, each of the four types of risk and concluded that none of them were established, dismissed the appeal/petition, and confirmed the Director’s Decision (Paragraphs 254 to 274).

14.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 that is sufficient to vitiate the TCAB Decision and justify the grant of leave. This is especially so given the assessment, reasoning, and findings regarding the evidence, COI materials, credibility, risk of harm, and accordingly Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, all of which are within the province of the decision-maker. I hence see no reasonably arguable case for judicial review, let alone one that could be raised in relation to the vague and unparticularised allegation that the TCAB Decision is “substantially unfair”.

15.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

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