Bah Amadou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 3775/2019[2025] HKCFI 1363

Court

High Court CFI

Date16 Apr 2025

Judge—

Case Document

100%Judiciary

HCAL 3775/2019

[2025] HKCFI 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3775 of 2019

BETWEEN
	Bah Amadou	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 documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:

1. Form 86 be amended the on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party; and

2. Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.By a Form 86 filed on 18 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “Decision on Non-Refoulement Claim Protection on all Applicable Grounds 13^th December 2019”. He named the “Director of Immigration Department” as the proposed respondent and the Immigration Department as an interested party.

2.According to the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 13 December 2019 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) refusing the Applicant’s non-refoulement protection claim.

3.As such, I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

4.The Applicant did not ask for a hearing of this application and hence I proceeded to deal with it on paper.

Background

5.The Applicant is apparently of Guinean and Nigerian dual citizenship. He was arrested and convicted for drug trafficking in Hong Kong in 2010, and sentenced to 12 years imprisonment. He was released on recognizance not long before the hearing before the TCAB on 6 November 2019.

6.He seeks non-refoulement protection on these bases :-

6.1  He will be harmed or killed in Guinea by his relatives due to religious differences and a land dispute;

6.2  He will be harmed or killed in Nigeria by drug dealers due to his failure to deliver the drug as tasked;

6.3  He will be harmed and killed in Nigeria by government agents due to his involvement with the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”);

6.4  He will be harmed or killed in Nigeria by the Niger Delta Militants due to his refusal to join them;

6.5  He will be prosecuted and imprisoned in Nigeria for the drug offences committed in Hong Kong.

7.His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

9.In his affidavit filed in support of the Form 86, the Applicant exhibited a 4-page “Grounds for Judicial Review – Leave to Appeal” (the “JR Grounds”). After repeating the facts pertaining to the bases of his non-refoulement protection claim as listed above, the Applicant raised 4 grounds of challenge against the TCAB Decision therein.

10.Firstly, the Applicant complains that the TCAB had failed to apply the law in Ubamaka Edward Wilson v Secretary for Security and Anr (2012) 15 HKCFAR 743.

11.The TCAB was clearly aware of the Ubamaka case as it was expressly cited when the TCAB was reciting the relevant principles applicable to BOR 3 Risk assessment [11-13].

12.The relevant BOR 3 risk in the Applicant’s case was premised upon the allegation that he will be subject to a further term of imprisonment in Nigeria due to his drug convictions in Hong Kong, or “a (“double jeopardy”) situation” as he put it in the JR Grounds.

13.When dealing with this claim (which was raised only at the hearing before the TCAB), as noted by the TCAB, the Applicant did not offer any evidence in support [95]. This remains the situation at this juncture – other than a bare assertion in the JR Grounds that “the Nigerian government would punish any Nigerian that were convicted in overseas for drug trafficking. The similar punishment and sentenced would be invoked in Nigeria” [sic.] there is no evidence of any kind to support the same.

14.Given such evidential deficiency, the TCAB did not err in law by failing to correctly apply the Ubamaka case. As indeed, the thresholds of showing “substantial” or “strong” grounds for believing that if removed from Hong Kong there will be a “real risk” of torture or CIDTP simply cannot be made out on mere assertion anyway.

15.Secondly, the Applicant complained that the TCAB was “clearly in breach of the required high standard of fairness” in allegedly failing to take into account his 12‑year prison term in Hong Kong and the possibility of being incarcerated again in poor and uncivilized conditions that is the Nigerian prison.

16.This is but an extension of the first complaint. Suffice it to say that there is also no evidence at all to support the assertions in relation to the prison conditions in Nigeria. As to the alleged possibility of incarceration in Nigeria, the analysis above in respect of the first complaint is again sufficient.

17.Thirdly, the Applicant complained that the TCAB had failed to recognize his fear was within BOR 3, and that he genuinely believed that he will be killed upon his return to Guinea and Nigeria.

18.At the outset, it would be utterly wrong to suggest that the TCAB did not recognize that the Applicant’s alleged fear was one within BOR 3 – BOR 3 risk being one of the four applicable grounds under the USM, the TCAB had in fact identified it as such [6], stated correctly the applicable principles [11-12] and extensively analysed the Applicant’s evidence with all these in mind [16-101].

19.The conclusions reached by the TCAB was a result of applying the correct principles, after giving every reasonable opportunity to the Applicant in presenting his claim and were not irrational. To put it simply, the Applicant has still not given any evidence to surmount the requisite Ubamaka thresholds in establishing BOR 3 ground; “genuine belief” is simply not the test.

20.Fourthly, the Applicant complained that it was unfair for the TCAB to solely rely on COI as the countries in question are, allegedly, corrupt and would censor negative news about them.

21.This complaint is again based on mere assertions of corruption and censorship and the Applicant has again not offered any evidence in support of the same. This complaint therefore does not even get off the ground.

22.All in all, the Applicant has failed to show that his intended judicial review is reasonably arguable, not to mention realistic prospect of success.

23.In any event, I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

24.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 16^th day of April 2025.

(Allen LEE)
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 Applicants: 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 16/4/2025 Bah Amadou 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 16/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10359/18/2/243/GIN/NI7 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3565/17(formerly RBCZ 11715/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)