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

HCAL 273/2020

[2025] HKCFI 2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 273 of 2020

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.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 24 January 2020, 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 20 December 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 10 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000273_2020_files/the_Board's_Decision.pdf

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

3.The basis of the applicant’s claim is that he would be harmed or killed by the National Intelligence Agency of Gambia after the applicant was found out of having leaked/sold information about Gambia to the US on-line media.   The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 7 May 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 him updated address.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.In his Form 86 and supporting affirmation, the applicant did not provide any grounds for the intended challenge.

8.At the hearing, this court reminded the applicant that he had not provided any grounds so far in support of the intended challenge and asked him whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that in his home country, there is still no respect for the rule of law, and corruption is rampant. He also averred that during the Board hearing, he wanted to provide internet evidence but the Board refused to let him do so. He said that since the Board’s Decision, there have been many changes in Gambia and he has information available on the internet to support these changes. He claims that presently in Gambia, everyone, including his own family at home, lives in fear.

9.As the Courts have repeatedly stated, 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.[3] In the present case, the Board rejected the claim because it found that the applicant’s evidence was unreliable.  The Board also found that even if the applicant’s version were true, it found that the injuries he suffered were minor.  The Board thus found that there was no real risk of harm.  The Board also found that state protection would be available and internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Decisions of the Director and the Board.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

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

12.The Leave Application be dismissed.

Dated the 23^rd 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