Sidibe Alpha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3328/2019

[2025] HKCFI 3645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3328 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 November 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. 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 is a national of Mali. He came to Hong Kong and was allowed to stay as a visitor until 17 December 2018. He overstayed and surrendered to the Immigration Department on 24 December 2018. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his former employer, Dembele because he lost his money of US$13,000, which was for the purchase of electronic appliances in Hong Kong. He had left his bag in a taxi in Hong Kong with his passport and money inside. When he told Dembele about it, Dembele did not believe him. He thought the applicant had stolen his money and threatened to kill him and his family. Shortly after this incident, he learned that his sister passed away. He suspected that she was poisoned by Dembele.

5.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003328_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 29 August 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered questions the Board put to him.

9.Having considered the evidence, the Board found the facts below and dismissed his appeal, confirming the Director’s Decision.

(1)  It did not believe the applicant’s claim that he had lost the money. [89]

(2)  The applicant had provided inconsistent evidence. [90]

(3)  The applicant had given inconsistent evidence of his knowledge of Dembele’s business. [92]

(4)  It did not accept that the applicant had worked for Dembele as claimed.

(5)  It did not accept that he had lost Dembele’s money or Dembele had threatened to kill him and his family.

(6)  It did not accept that his sister was poisoned by Dembele.

(7)  It did not believe the applicant faces any risk of being harmed for the reasons he claims if he returns to Mali.

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

10.The applicant has filed Form 86 dated 7 November 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

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

DISPOSITION

16.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 28^th 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