Diallo Boubacar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2872/2019

[2025] HKCFI 3327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2872 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K. W. Lung:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing, However, he was absent at the hearing on 18 July 2025. I shall deal with his application on the papers.

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, aged 48, is a national of Mali. He came to Hong Kong on 17 April 2017 as a visitor and was allowed to stay as such. However, he overstayed and on 15 May 2017, he surrendered to the Immigration Department. He lodged a non-refoulement claim by written submission on the basis that, if refouled, he will be harmed or killed by the Fulani Herdsman (“the Group”), which is an extremist Islamic group that targets against Christians.

5.According to the applicant, in 2013, the Group came to his village and demanded occupation of the land. His father declined their demand. The Group had staged several attacks and killed his father and other villagers. They had also burnt down the houses. His uncle advised him to leave Mali. In November 2014, he left Mali for China where he had stayed for 2.5 years. He learned that Hong Kong provided asylum protection, so he came to Hong Kong.

6.Details of his claim are set out at paragraph 7 of the Notice of Decision dated 10 December 2018 (“the Director’s Decision”) and the Board’s Decision. See hyperlink

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002872_2019_files/the_Board's_Decision.pdf.

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 dismissed the applicant’s claim. The Director found that (i) in the absence of any past ill-treatment inflicted upon him by his enemies, it indicates a small future risk of harm if he returns to Mali; (ii) his perceived risk in Mali as claimed is not likely to materialize; (iii) state protection will be available; and (iv) internal relocation is viable. [12]-[25]

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 28 June 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found the facts below.

(1)  The applicant took no action for around 1 month before his surrendered to the Immigration Department without good explanation. By virtue of section 37ZD(1)(b) of the Ordinance, the Board found that it was detrimental to his credibility. [29]-[31]

(2)  The Group would not be interested in the applicant and his perceived risk is only speculative. [50(1)]

(3)  His allegation that his problems would span into other West African nations were found to be not true. [50(2)]

(4)  The applicant had never come across the Group, let alone suffered any injury at their hands. [50(3)]

(5)  The applicant has never sought help from police. There is no evidence that the state would not help him. [50(4)]

11.For the above reasons, the Board 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 30 September 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit 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.

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.There is no valid ground from the applicant to challenge the Board’s Decision.

18.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

Dated the 21^st day of August 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