Ndumbi Paul Mulumba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2015/2025

[2026] HKCFI 2619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2015 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;            or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:  

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is a re-assessment of the applicant’s appeal by the Torture Claims Appeal Board (“the Board”) as the previous Board’s Decision of a different constitution was set aside by consent and a re-hearing was ordered.

2.The applicant applies for leave to apply for judicial review of the Decision dated 11 August 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below. The applicant did not ask for a hearing.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Democratic Republic of the Congo (“DRC”). He came to Hong Kong as a visitor on 18 August 2010 and married a Hong Kong resident on 29 October 2010. His limited stay as a dependent was extended on 20 April 2015. No further application for extension was made. A deportation order was made against the applicant on 25 August 2015.

5.On 12 January 2016, he lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the agents of the Congolese government because of his political involvement in DRC, and for his political opinion, actual or imputed (“the political claims”). The applicant further raised that he is suffering from HIV and diabetes; and if refouled, he may not have continued periodic follow-up medical care of specialist treatment, resulting in irreversible decline in his state of health, which could result in (i) intense suffering or (ii) significant reduction in life expectancy (“the health reasons”).

6.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002015_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of Notice of Decision dated 24 November 2016 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 11 February 2025 and 1 April 2025, the Board conducted oral hearing for his appeal. Both the applicant and the Director were legally represented. The applicant had given oral evidence and answered questions from the Board and the lawyer acting for the Director. The Board had considered final submissions from the parties.

10.Having considered the evidence, the Board found the facts below.

(1)  The applicant had misled the Director and made a false claim when he claimed he feared harm for his business debt whereas he made a political claim before the Board. [123(a)]

(2)  There were also inconsistency in his relevant conduct and assertions. [123(f)] & [123(g)]

(3)  The Board accepted that his brother was killed in DRC. But there was nothing in evidence that his brother death was related to his fear of his enemies. [124]

(4)  His political claims and the asserted risk of harm associated with his political opinion and activities are not credible. [125]

(5)  The Board did not accept because of his asserted political claims, he was entitled to non-refoulement protection. [128] & [129]

(6)  As to his health reasons, the Board accepted he suffered a range of significant physical medical conditions as he claimed. [130]

(7)  The Board reviewed the country of origin information (“COI”) and found that there are well-trained and highly competent medical and allied practitioners in DRC. It therefore did not accept that his refoulement would deny him the medical care that Hong Kong is providing him. [132]

(8)  The Board further took into consideration that the US is cutting the fund in support of health case in DRC. However, there are other sources of fund available for the medical care in DRC. [133]

(9)  The Board concluded that the political claims and health reasons failed.

(10)  Upon his lawyer’s urge, the Board further took into consideration DRC’s socioeconomics and rejected the lawyer’s submission that this factor will entitle the applicant to non-refoulement protection. The Board also found the applicant will be able to secure paid employment in DRC if he returns to DRC. [134]

11.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 5 September 2025 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

17.The Board had conducted a comprehensive investigation and analysis into the applicant’s claim. This Court, having examined the Board’s Decision rigorously, does not find any error in law, procedural impropriety or Wednesbury irrationality in its findings. There is no reason for the Court to interfere with the Board’s Decision.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 3^rd day of July 2026

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