Coly Michael v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3184/2019

[2025] HKCFI 4265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3184 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 24 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 25 July 2015. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Senegal. On 28 May 2019, the applicant arrived in Hong Kong as a visitor but was refused permission to land. He lodged a non-refoulement claim in Hong Kong.

4.The applicant’s claim was based on his fear of being harmed or killed by a group of unknown persons from the Senegalese government due to a land dispute.

5.According to the applicant, there was a disputed piece of land that his father owned. In October 2018, unknown men approached the applicant with knifes and bottles. The applicant believed these men were acting on behalf of the government. In November 2018, the applicant received a phone call requesting the applicant to prove that the piece of land belonged to him. Sometime later, the applicant was assaulted on two incidents in 2018 and 2019 by unknown men. After receiving a threatening phone call from an unknown man, the applicant fled to Hong Kong. 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/HCAL003184_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 15 July 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Board considered state protection will be 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 8 October 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s question.

9.Having considered the evidence, the Board found the applicant’s material evidence to be incredible and contradictory [32]. In any event, having considered the Country of Origin Information, it found that internal relocation would not be unduly harsh [39-43]. 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

10.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and not fair; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and the Director’s failure to attain a high standard of fairness.

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 grounds under paragraph 10 are the applicant’s bare assertions or personal views without any evidence in support. They are not valid 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 25^th 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