Sidibeh Muhammed Lamin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3144/2019

[2025] HKCFI 2828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3144 OF 2019

________________________

BETWEEN

________________

_____________________

J U D G M E N T

_____________________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. He appeared before the Court on 28 May 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Gambia. He arrived in Hong Kong on 24 September 2016 on the strength of his Gambian passport. He did not depart and overstayed since 9 October 2016. On 17 October 2016, he surrendered to the Immigration Department. In due course, the applicant lodged his non-refoulement claim.

5.The applicant’s claim is based on his fear of being harmed or killed by the Gambian Army.

6.According to the applicant, he was associated with a political party called United Democratic Party (“UDP”) and was one of the major opposition parties in Gambia. The applicant claimed there were three incidents where soldiers from the Gambian Army went to his house to threaten him with death in 2016. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the level of harm from the Gambian Army is assessed to be low, given the low intensity and frequency of past ill-treatment is indicative that the future risk of being harmed or killed is not likely to materialize and not as imminent and substantial, and that the soldiers did not represent the stance of the whole Gambian Army or Government [11-14], state protection was available [15]; and internal relocation alternatives were available and reasonable [16].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 20n September 2019, the Board conducted an oral hearing for his appeal. He said that UDP, the currently ruling government, might be overthrown.

10.Having considered the evidence, the Board found that the UDP is currently the ruling party and attempting to address the country’s violent and repressive past. Therefore, the Board was not satisfied that the applicant was at risk of harm because of his former association with the UDP [40]. In any event, the Board found that adequate state protection would be available [41].

11.In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 23 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not raise any reason in support of his application.

13.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

17.The applicant has raised no valid ground to challenge the Board’s findings.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant appeared in person.