Mendy Babou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2965/2019

[2025] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2965 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent at the hearing on 3 March 2025. I shall deal with his applicant on the papers.

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, aged 37, is a national of Gambia. He came to Hong Kong as a visitor on 3 September 2014. He overstayed since 3 December 2014 and surrendered to the Immigration Department. He lodged a non-refoulement claim for the reason that, if refouled, he will be harmed or killed by Augustine Riley, the father of his ex-girlfriend, Maggie Riley, and his men due to his love affair with her.

5.According to the applicant, he met and fell in love with Maggie in 2012. Maggie was pregnant in 2013. Augustine knew about it and was furious. In 2014, Maggie and her baby died during delivery. Augustine did not threaten to kill him. However, he saw Augustine’s men following him and they intended to harm him as they had weapons. He reported to police, but they did not register his complaint. He moved to live in Senegal. Upon his friend’s advice he left Gambia for China, from where he came to Hong Kong.

6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 October 2018 (“the Director’s Decision”).

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 the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of ill-treatment by August showed that his risk of being harmed upon his return to Gambia is low; that state protection will be available; and internal relocation is viable. [11]-[18]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 24 July 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence [19]- [65], the Board stated at paragraph 66:

“Having consider at the evidence, I find A-P’s evidence implausible, incredible and impossible. I reject A-P’s evidence as being not credible. I find A-P did not face any threats nor any ill-treatment in The Gambia, and I find A-P will not face any ill-treatment in The Gambia if returned to The Gambia.”

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

11.The applicant has filed Form 86 dated 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

13.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).

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

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

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

The applicant was unrepresented and did not appear.