Sowe Abdou Rahman v. Torture Claims Appeal Board

HCAL 400/2021

[2026] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 400 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 17 February 2021”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 22 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 January 2021.

2.However, the Board only made one decision dated 17 February 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 17 March 2020 (“the Director’s Decision”).  The applicant also attached a copy of the Board’s Decision to his supporting affirmation dated 22 March 2021.  It is clear that the date of decision as stated in Form 86 was a mistake.  The decision in respect of which relief is sought in the Leave Application should be the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000400_2021_files/the_Board's_Decision.pdf

3.The Board found that the applicant had failed to show any substantial grounds for believing that he would be at risk on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendment

4.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.  Accordingly, it is so amended on this court’s own motion. 

The applicant’s case

5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would be harmed or even killed by people in Gambia as he was homosexual.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application.  However, the applicant was absent at the hearing on 26 March 2026.

8.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

9.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 22 March 2021.  He merely mentioned in his affirmation that he would be killed by his enemy if he returned.

Discussion

12.First of all, the applicant’s danger in his home country had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

14.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

15.In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 29 October 2020 and the applicant was present.  Thus, the applicant was given the opportunity to present his case to the Board in person.

16.As can be seen from the Board’s Decision, the Board found that the applicant had only made bare assertions and presented no objective proof to support them.  Even on the applicant’s own evidence, he only encountered one incident in August 2018 where a few people tried to attack him, and he left the scene unharmed.  The Board considered that given the applicant was never physically harmed or even verbally threatened before he left Gambia in September 2018, the level of threats he faced was very low.

17.The treatment sustained by the applicant did not reach a minimum level of severity.  The enemies who attempted to assault him were non-state actors.  There was no evidence to show that the treatment the applicant sustained came within the intention as set out in section 37U of the Immigration Ordinance.

18.As can be seen from 139 to 164 of the Board’s Decision, the Board had examined extensive, fully-referenced country of origin information (“COI”) and found that despite drawbacks with corruption and human rights abuses within Gambia, reasonable state protection was available to the applicant should he return to Gambia.  In fact, the applicant had never sought assistance from the Gambian police or authorities prior to his departure.

19.In terms of internal relocation, the Board found that the applicant had no knowledge of who actually his enemies were.  The applicant also admitted that his enemies would not know if he returned to the country.  The Board found that it would not be unduly harsh for the applicant, being an able-bodied young man with 18 years of education and years of experience trading African dresses, to relocate within the country to prevent the harm he feared from his enemies, albeit the Board considered that such a risk seemed not foreseeable.

20.Thus, the Board found that the applicant did not face any genuine risk of any of the proscribed forms of harm under the USM if he were refouled to Gambia.

21.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

22.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

23.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 22^nd 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