Touray Muhammed v. Torture Claims Appeal Board

HCAL 249/2021

[2026] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 249 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of the West African country The Gambia who arrived in Hong Kong on 7 March 2019 as a visitor with permission to remain as such up to 14 March 2019 when he did not depart and instead overstayed, and on 20 March 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by people of the Youth Movement of national Development Plant of the Gambian Government (“Youth Movement”) as he was a member of the political party United Democratic Party (“UDP”) which did not support the Youth Movement.  He was subsequently released on recognizance pending the determination of his claim.  

2.The Applicant was born and raised in Brikama, The Gambia.  After leaving school he worked as a teacher in his home district, and supported UDP regularly attended their local meetings and activities.

3.As UDP was not in support of the Youth Movement, and when he refused to join them despite being offered with money by their people, the Applicant in between 2016 and 2018 had received anonymous calls threatening to kill him if he did not leave UDP to join the Youth Movement. 

4.As a result the Applicant became fearful for his life, and so on 6 March 2019 he departed The Gambia for Senegal and then for Hong Kong, and after overstaying in Hong Kong he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 12 July 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the people of the Youth Movement upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him in the absence of any actual physical harm or ill-treatment being inflicted on him over some 3 years between 2016 and 2019 other than just anonymous verbal threats, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that the Youth Movement was part of the plans and policies of the Gambian government to promote and enhance the education and training for the youths of the country without any evidence or inclination to resort to threats or violence against anyone, while reasonable internal relocation alternatives are also available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,300 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.On 24 July 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 22 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board found no reliable evidence of any real intention of the people of the Youth Movement to harm or kill him other than just some threats from some anonymous phone calls over some 3 years when there were ample time and opportunity for them to do so, nor is there any logical reason for them to specifically target the Applicant as he was just an ordinary low ranking member of UDP, and that in any event even if his alleged risk were real that it was a localized one that it would not be unreasonable or too harsh for the Applicant to move elsewhere within the country to avoid such threats upon his return to The Gambia without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 1 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI of the situations in The Gambia, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 21^st day of April 2026

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