Ceesay Modou Lamin v. Torture Claims Appeal Board

HCAL 944/2020

[2025] HKCFI 2077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 944 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “The Torture Claims Appeal Board’s decision dated 9 April 2020”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 20 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 9 April 2020 without identifying the decision-maker.

2.In relation to the applicant’s claim for non-refoulement protection, the Torture Claims Appeal Board (“the Board”) made a decision on 9 April 2020 (“the Board's Decision”).  At the oral hearing of the Leave Application on 13 May 2025, the applicant confirmed that the decision in respect of which relief is sought is the Board's Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000944_2020_files/the_Board's_Decision.pdf

3.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 July 2019.

Amendments

4.The applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.  Thus, on this court’s own motion and with the confirmation from the applicant at the oral hearing on 13 May 2025, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

5.As aforesaid, the applicant also confirmed that he is applying for leave in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.  

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection, as he feared being harmed or killed by someone called MUSA or by the Barrow Youth Movement (“BYM”), a party that would be set up by Adama Barrow, the President of Gambia, if he were to return to Gambia, as he had refused to join BYM.

Oral hearing

8.The applicant requested for an oral hearing and his case was heard on 13 May 2025.  

9.At the hearing, apart from confirming the name of the putative respondent, the name of the putative interested party, and the decision in respect of which relief is sought in the Leave Application, the applicant said that it is still not safe for him to return to Gambia, as he used to work and took videos for his uncle and hence he would be pursued.  The applicant confirmed with the court that these assertions had already been placed before the Board for its consideration.

10.However, the applicant added that some of his friends were arrested the week before the oral hearing, and he wanted to show to this court some photos as proof.  As the arrest of his friends happened only after the Board’s Decision, the Board had not considered such evidence when making its decision.

Grounds for judicial review

11.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

12.However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 20 May 2020. 

13.When being asked by this court at the oral hearing, the applicant only relied on those matters concerning his uncle, the videos and his friends as aforesaid as his grounds for the intended judicial review.

Discussion

14.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

15.In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 6 November 2019 and the applicant was present at the hearing.  Hence, the applicant did have the opportunity to present all his evidence and proof to the Board.  The alleged danger that the applicant would face if refouled had already been duly assessed by the Board. 

16.As to the new allegation that some of his friends were arrested recently, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage (see Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090).

17.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.  Thus, the applicant’s assertion at the oral hearing about the recent arrest of his friends cannot assist him in the Leave Application.

18.After due consideration of the law and the evidence of the applicant, the Board concluded that there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Gambia.  The alleged threats from MUSA, even if true, were verbal only.  The applicant did not sustain any actual physical injury from any attacks.  The Board did not accept the hearsay evidence that the applicant’s sister in Gambia noticed people were wandering around his home and were looking for him, especially when it was only the applicant or his sister’s speculation that the people were from BYM. 

19.In addition, the applicant had never reported the threats from MUSA to the police or other government authorities.  The applicant did not know the background of MUSA and had never met MUSA personally.  There was no evidence to suggest that MUSA was a public official or acting in such capacity.  Objective country of origin information showed that state protection was available to the applicant.

20.Further, the applicant, being an able-bodied adult who received 17 years of education with a diploma in computer software and ample work experience, could relocate to other parts of Gambia without undue hardship.  Hence, the Board concluded that internal relocation was viable for him.

21.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

22.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

23.For reasons aforesaid, the Leave Application is dismissed.

Dated the 21^st day of May 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