Jawla Suwaibou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2403/2019

[2025] HKCFI 1099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2403 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 Levy:

1.  The Form 86 is amended on the court’s own motion;

2.  Leave to withdraw the Leave Application;

3.  The Leave Application be dismissed

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 31 May 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.In the Form 86, the applicant named “USM” as the proposed respondent and “TCAB” as the interested party.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 26 February 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

4.The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.The applicant is a national of Gambia.  He last arrived in Hong Kong on 22 October 2014, and was permitted to remain as a visitor until 20 January 2015.  He did not depart, and has overstayed. The applicant surrendered to the Immigration Department on 26 January 2015.  On 13 March 2015, the applicant raised a non-refoulement claim.  The applicant’s claim was considered under all applicable grounds - the risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by the supporter of the former president Yahya Jammeh. The applicant was a member of the rival United Democratic Party (“UDP”).

6.According to the applicant, he joined the UDP around 2005.  After Jammeh won the presidential election that year, Jammeh’s supporters harassed the applicant.  During the 2011 election campaign, the applicant attended a UDP rally and was almost arrested.  The rally became unruly as militants arrived at the scene and started attacking the applicant and other UDP members.  Jammeh won the 2011 election and the applicant continued to participate in UDP rallies.

7.In 2012, some of Jammeh’s supporters in Dobbo Village identified the applicant as a UDP supporter, and spoke violently against him.  In December 2013, the applicant attended a UDP meeting in Tanjie, along with thousands of other people.  Suddenly, numerous police in uniform arrived and arrested a large number of participants including the applicant, and took them to the Tanjie Police Station.  The police accused them of organizing an unlawful meeting and giving false information.  After keeping the applicant and other participants in the police station for less than a day, the police allowed them bail.  The applicant last reported to police on 16 February 2014.  Worried that he would eventually be prosecuted and sent to jail, his elder brother and other relatives advised him to leave the country. 

8.Subsequently, Jammeh was defeated in the December 2016 presidential election by a former UDP member.  Jammeh refused to step down, however the Senegalese army intervened and forced Jammeh into exile.  Despite the pardon of more than 170 prisoners by the newly elected political leader, the applicant still feared Jammeh’s supporters and the police.

9.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  The Director assessed the claimed risk of ill-treatment to have been low as the applicant had not suffered any physical harm, and was released on bail after having been in police custody for less than a day.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

10.On 22 July 2019, the applicant attended a hearing before the Board.  After the Board explained the purpose of the oral hearing, the applicant said, “That is all.”  

11.The Board found that there was no real risk of harm, as the applicant had not suffered any physical harm or any severe pain or suffering, and Jammeh was in exile.  The applicant was in police custody for less than a day and then released on bail.  The Board found the applicant’s fears of the police to be speculative and unsupported by the facts.  In any event, the Board found that state protection was available and internal relocation was viable.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.As the Courts have repeatedly stated, determination of the merits of a non‑refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.The applicant’s Form 86 and supporting affirmation did not contain any grounds for seeking relief. 

14.At the hearing, the applicant informed this court that he got married to a Hong Kong resident in September 2019 and has been issued a Hong Kong identity card. He therefore wished to withdraw the Leave Application.

15.It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  

16.The Board’s Decision was arrived at after having carefully examined the applicant’s evidence.  It found that the applicant’s account did not amount to any real threat or risk and that even if there were any threats, the applicant would have the option of state protection and internal relocation.  These are findings of fact, which the court in a judicial review will not interfere with.

17.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

18.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Withdrawal of Leave Application

19.As stated above, the applicant is now a Hong Kong resident, and wanted to withdraw the Leave Application.  The applicant was therefore asked to confirm his withdrawal under oath.  The applicant affirmed that that above stated facts, and confirmed that he understood the consequence of the application to withdraw.  

20.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action.  In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

21.The Form 86 is amended on the court’s own motion;         

22.Leave to withdraw the Leave Application;

23.The Leave Application be dismissed

Dated the 31^st day of March 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