Barry Souleymane v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3593/2019

[2025] HKCFI 2088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3593 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 (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 dated 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 25 October 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 13 December 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.In Form 86, the Applicant has incorrectly named “USM” as the proposed respondent and “TCAB” as the proposed interested party.  On my own motion, I have amended Form 86 to correct these.

Background

3.The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed in Senegal owing to some money dispute, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law in light of the seriousness of the issues involved.  I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

5.After carefully considering the Applicant’s evidence as contained in the NCF, the record of interview before the Department, the Notice of Appeal/Petition and given at the hearing, the Board found that there were a number of inconsistencies and discrepancies in the “central” aspects of his claim for non-refoulement.  These raised “serious” doubts regarding the reliability of his claims related to his business dealings in Senegal and the problems he allegedly faced (see §§53-54, 64-71 of the Board’s Decision):

(1)  The Board did not accept that the Applicant faced any real chance or risk of harm from either Karim or Papefollou if he were to return to his country.  Nor did the Board accept that the Applicant faced any real chance or risk of being chased and arrested by police because of his failure to repay Karim.  The Board did not consider that there was any real risk that the Applicant would face any of the prescribed forms of harm should he return to Senegal.

(2)  The Board found that the Applicant would not be at risk of any harm arising from his failure to repay, nor would he face any other form of severe pain or suffering, if he returned to Senegal.  The Board did not consider that there were substantial grounds for believing the Applicant would be in danger of being subjected to torture.

(3)  The Board found that the Applicant did not face any genuine and substantial risk of being subjected to mistreatment by either Karim, Papefallou, or the police should he return to Senegal.  The Applicant was not at any real risk of being subjected to torture or CIDTP so as to constitute a breach of BOR 3.

(4)   The Board further found there was no real risk that the Applicant would be arbitrarily deprived of life, imposed death penalty, or otherwise be deprived of his rights under BOR 2.  The Applicant would not be exposed to any real risk of violation of his right to life so as to constitute a breach of BOR 2.

(5)   The Board did not accept that there was any real chance or real or substantial risk that the Applicant would suffer persecution now or in the reasonably foreseeable future if returned.  The Board found that the Applicant did not have any well-founded fear of persecution for a Convention reason.

6.The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation was primarily within the province of the Board.  It was entitled to make evaluations based on the evidence available and to decide the weight to be given to them. The Applicant has not shown any error of law, procedural unfairness, or irrationality in the Board’s Decision.  It is inadequate for him to merely exhibit a copy of the Board’s Decision, hoping that the Court would reopen the Board’s findings.  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal (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, etc.).

7.Taking into account the above matters, I am not satisfied that the Applicant’s intended application for judicial review is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

8.I accordingly make an order that Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 8^th day of July 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