Cisse Bourama v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3256/2019

[2025] HKCFI 3350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3256 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 11 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.  However, he was absent at the hearing on 9 July 2025.  I shall deal with his application on the papers.

The applicant                       

3.The applicant is a national of Mali.  According to records, the applicant arrived on the strength of his Malian passport on 28 October 2018 but did not leave and instead overstayed since 12 November 2018.  On 16 November 2018, he surrendered to the Immigration Department.  In due course, the applicant lodged his non-refoulement claim.

4.The applicant’s claim was based on his fear of being harmed or killed by terrorists from rebellious groups as he acted as a leader in the protest against their atrocities.

5.  According to the applicant, there was a national conflict where around 50 volunteers including the applicant would protest the killings of innocent people by rebellious groups.  The applicant would peacefully protest but then the applicant received threatening calls.  He reported to police.  After a month of the report to police, a group of terrorists came to the applicant’s house to attack him, so he fled.  He did not know the identity but he was told that his sister was killed by the terrorists.  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/HCAL003256_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 Notice of Decision dated 28 April 2019 (the “Director’s Decision”), the Director dismissed the applicant’s claim because the applicant failed to adduced further information on the terrorists or establish their identity [10-14]; state protection was available [15-20]; and internal relocation alternatives were available and reasonable [21-26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 August 2019, the Board conducted an oral hearing for his appeal.  The Board had asked him substantial amount of questions, to which he replied.

9.Having considered the evidence, the Board did not accept the facts in support of his claim and concluded that he will not face a real chance of harm of any type in Mali. [34]- [53]  

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

10.The applicant has filed Form 86 dated 1 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 has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

17.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 2^nd day of September 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