Case Document

100%Judiciary

HCAL 3618/2019

[2025] HKCFI 1382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3618 of 2019

BETWEEN
	Bah Ebrima	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

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:

1. Form 86 be amended, naming the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 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 31 October 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 21 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.On my own motion, I have amended Form 86, correctly naming the Board as the proposed respondent and the Director as the proposed interested party.

Background

3.The Applicant’s personal background, the facts alleged by him in support of his non-refoulement claim that he would be harmed or killed by his paternal uncle, etc. in Gambia, 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

4.The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A. The Applicant’s intended challenge of the Board’s Decision is obviously not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and leave should be refused.

5.In this case, the Applicant has failed to identify his grounds of judicial review in Form 86 as required: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

6.The Applicant has also breached his duty to make full and frank disclosure of all material facts known to him and potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35. The Applicant has completely failed to meet the required standard of providing the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be properly performed. The fact that he acts in person does not relieve him of the relevant duty nor provides answer for his non-compliance. It is inadequate for him to merely exhibit a copy of the Board’s Decision in his supporting affirmation in the hope that the Court may adjudicate the matter afresh in the absence of any valid public law grounds. As has been repeatedly emphasized in previous cases, the role of the Court in a judicial review is not to provide a further avenue of appeal.

7.Very importantly, I remind myself of the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issues at hand: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. As can be seen from the Board’s Decision, based on the analysis set out in §§48-65 and the application of the relevant law and legal principles, the Board concluded that there was no persecution risk. Neither was the Board satisfied, on the totality of evidence, that the Applicant would face any BOR 2 risk (§§33-35, 67-68), BOR 3 Risk (§§36-41, 70-73), or torture risk (§§42-46, 75-83).

8.The assessment of the evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The Applicant has been unable to show any errors of law committed by the Board, or that there was any procedural unfairness or irrationality in the Board’s Decision. 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: 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.

Conclusion

9.For the above reasons, I make an order that Form 86 be amended as described and the Leave Application be dismissed.

Dated the 14^th day of April 2025

(Thomas Chan)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/4/2025 Bah Ebrima Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13819/18/10/161/GA128 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3470/18 (Formerly RBCZ/3001824/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)