Coulibaly Samba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2840/2019

[2025] HKCFI 2607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2840 of 2019

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 26 September 2019, 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 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 22 October 2018.  (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.In his Form 86, the applicant named the “USM” as the proposed respondent and “T.C.A.B” as the interested party.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 10 June 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 his updated address.

Background

4.The background as taken from the Director’s Decision and the Board’s Decision can be briefly stated as follows.

5.The applicant is a national of the Gambia.  He arrived in Hong Kong on 8 November 2016, and was permitted to remain as a visitor until 22 November 2016.  He did not depart, and overstayed. On 23 November 2016, the applicant surrendered himself to the Immigration Department and lodged his non-refoulement claim the same day.

6.The applicant’s claim was considered under all applicable grounds i.e. torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by people from the National Intelligence Agency (“NIA”) and the members of the Alliance for Patriotic Reorientation and Construction, due to his support for the United Democratic Party (“UDP”) who opposed President Yahya Jammeh.

7.According to the applicant, after he joined the UDP in 2014, he started canvassing for the party.  In around September 2016, while the applicant and other UDF members were participating in a demonstration, a group of soldiers demanded them to stop the demonstration.  An altercation ensued between the two sides.  A soldier pushed the applicant to the ground and kicked him all over the body.

8.Around 2 or 3 days after the demonstration, six NIA officers came to his house to look for him while he was away from his home.  The NIA officers told his parents that they would be back.  A neighbour told the applicant that the NIA was dangerous and would torture him, and advised him to leave the country. The applicant did not feel safe in his country, and departed Gambia.

9.In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

10.On 8 May 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board. 

11.The Board rejected the claim due to its assessment of country of origin information (“COI”) indicating significant improvements in human rights conditions and the rule of law since the current Gambian president, President Barrow, came to power.  Thus, the Board found that there was no real risk of harm, and dismissed the appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

12.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review. 

14.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant stated that his case was political.  It was still not safe for him to return to Gambia.  He further informed this court that he married a Hong Kong resident in 2020, and has made an application for a dependent visa.  He would like to remain in Hong Kong and start a family here.

15.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.  The Board’s conclusion that the applicant would not face a real risk of harm of any kind was arrived at after having carefully examined the applicant’s evidence, and its assessment of COI indicating significant positive changes in the political situation in Gambia.  The Board is entitled to make a finding of the lack of real risk of harm.  The applicant has not provided any grounds in support of the Leave Application either on paper or at the hearing.  All in all, 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^[6].

Orders

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

17.The Leave Application be dismissed

Dated the 20^thday of June 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