Samateh Matarr v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1824/2020

[2025] HKCFI 4560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1824 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 be amended to name the TCAB only as the putative respondent, the DOI as a putative interested party and the TCAB Decision dated 1 November 2019 as the decision sought to be reviewed; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 14 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated “28-11-2016”.  He named the TCAB as the proposed respondent as well as an interested party.

2.From the case record, there was a decision by the TCAB dated 1 November 2019 (the “TCAB Decision”) which affirmed a decision by the Director of Immigration (the “DOI”) dated 28 November 2016 in refusing the Applicant’s non-refoulement protection claim.

3.I take it that the Applicant is seeking judicial review of the TCAB Decision and amend the Form 86 accordingly, naming the TCAB only as the putative respondent and the DOI as a putative interested party.

4.The Applicant requested a hearing and one was scheduled on 8 September 2025.  Due to inclement weather, the hearing was adjourned to 9 September 2025 but he did not attend the adjourned hearing.  As it turned out, the Applicant was late and requested that he be given another chance to attend.  I therefore further adjourned the hearing to 19 September 2025.

5.At the further adjourned hearing, the Applicant informed me that he got married to a Hong Kong citizen last year and he has applied for a HKID.  However, that application was still pending.  As such, I still have to proceed to deal with this application.

6.Apart from the above, the Applicant confirmed that he had nothing else to add.

Background

7.The Applicant is a national of Gambia.  He seeks non-refoulement protection on the basis that he would be harmed or killed by the government for his association with his uncle who was arrested on false drug trafficking charges, if he was returned.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.In his affirmation filed in support of this application, apart from stating that he was “not satisfied” with the TCAB Decision and reiterating that his life would be in danger if he was returned, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

10.Looking at the TCAB Decision, with the correct principles on the four applicable grounds under the USM [4-20] and the applicable principles in assessment of evidence in mind [21-24], the TCAB took into account the Applicant’s case and all materials placed before it [25‑43], including the Applicant’s testimony at the hearing before it [44-49], and after thoroughly analysed the same came to the conclusion that none was made out [50-57].

11.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 10^th day of October 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