Sanyang Ya Ya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1248/2020 [2025] HKCFI 4230 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1248 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 10 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below. 2.The applicant did not ask for a hearing. 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. On 15 June 2014, the applicant arrived in Hong Kong on the strength of his passport but overstayed since 14 September 2014. On 24 September 2014, he surrendered as an over-stayer. In due course, he lodged a non-refoulement claim with the Immigration Department5.The applicant’s claim is based on his fear of being harmed or killed by his uncle due to a monetary dispute if he returns to Gambia. 6.According to the applicant, he worked as a plumber for his uncle’s business and went to China for the purchase of building supplies in mid-2014. However, the suppliers did not provide the supplies after payment, and his uncle thought that the applicant stole the money. He verbally assaulted the applicant’s father, threatened him to reveal the applicant’s whereabouts, and asked him to repay the missing sum of around USD$21,600. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001248_2020_files/the_Board's_Decision.pdf. The Director’s Decision 7.The Director considered the applicant’s claim in relation to the following risks:
8.By way of Notice of Decision dated 5 November 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. The Board’s Decision 9.The applicant appealed the Director’s Decision to the Board. On 19 June 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions. 10.Having considered the evidence, the Board found that the applicant’s evidence was incredible [44]-[45], and internal relocation is viable if he returns to Gambia. [30] Application for leave to apply for judicial review of the Board’s Decision 11.The applicant has filed Form 86 dated 22 June 2020 for leave to apply for judicial review of the Board’s Decision. 12.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision. DISCUSSION 13.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). 14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
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 26th 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
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