Bojang Momodou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2360/2020

[2026] HKCFI 4061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2360 of 2020

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 Levy:

1.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party. 

Observations for the Applicant:

A.  Introduction

1.By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 1 December 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 30 September 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 September 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002360_2020_files/the_Board's_Decision.pdf

2.The applicant was a homosexual and a Muslim. The basis of the applicant’s claim was that if refouled to Gambia, he would be harmed or killed by the Gambian civilians or the authorities. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

B.  Applicant’s grounds of review

3.In the supporting affirmation, the applicant advanced the following grounds in support of the Leave Application, asserting that the Board’s Decision was tainted by procedural unfairness and unreasonableness in that the Board had wrongly:

(1)  Ground 1: disbelieved his homosexuality without having made adequate enquiries about how his Islamic religion impacted on his experience as a Muslim homosexual. The Board was procedurally unfair when the Board conducted questioning without allowing the applicant sufficient opportunity to address the Board’s concerns on his credibility.

(2)  Ground 2: made assumptions, and rejected the “incident” by using its own incomplete and misconstrued understanding.

(3)  Ground 3: failed to properly assess the full circumstances of the applicant’s case and his experience as a homosexual Muslim. 

C.  The applicant’s life as a homosexual and a Muslim

4.The hearing was originally scheduled on 16 December 2025. However, it was adjourned 3 times to enable the applicant to obtain a transcript of the hearing before the Board. At the adjourned hearing on 28 April 2026, the applicant submitted a transcript of the hearing before the Board. However, instead of a transcript certified by the Board, the transcript was certified by a private company (Mergon Creative Ltd) based on an audio record of the hearing the applicant obtained from the Board. This court would not admit the transcript (“Transcript”) as evidence, but will accept it as part of the applicant’s submissions.

5.To put the applicant’s grounds for the Leave Application in context, it is necessary to discuss his personal background and claims. The Board, when assessing the applicant’s claims, had regard to the relevant COI, which showed that in Gambia, homosexual act, even consensual, is a criminal offence. The Board noted that there was a change of government since the applicant’s departure from the country, and the new President has not removed laws criminalizing consensual same sex activity. However, the COI has indicated that the new government would not enforce the relevant laws. The Board therefore accepted that if the applicant were found to be a homosexual man, there would be a real risk of harm, and the applicant would be unable to access reasonable state protection or internal relocation. The Board also considered, among others, a case from the UK’s Supreme Court, KJ (Iran) (FC) v Secretary of State for the Home Department[1], which case suggested that it would be inappropriate for the Board to require the applicant to alter his behavior as a homosexual man so as to evade the risks of harm he feared.

6.The Board found that the applicant’s factual account of his relationships with men and women in Gambia was largely consistent with his claims. However, when the Board questioned the applicant in detail about his feelings in having lived a life as a homosexual man in Gambia, the Board found that the applicant had not expressed feelings of shame (Board’s Decision [37]), and was not persuaded that the applicant had lived a life as a homosexual male.

7.Regarding the “incident” in December 2018 when the applicant’s sexual orientation was revealed when he openly hugged intimately his male date near his home, the Board found that there were lots of incidents of inherent implausibility concerning the lighting at the early hours of the morning and the number of people chasing after him when he and his gay boyfriend were seen. The Board therefore rejected that the applicant was not a homosexual and that he had had gay homosexual relationships in Gambia or in Hong Kong. It therefore concluded that the applicant would not face any risks of harm if refouled.

D.  Discussion

8.It is trite that a leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations in respect of each of the above grounds after considering the Board’s Decision and the applicant’s materials adduced.

9.Grounds 1 and 3 are in fact both about the Board’s rejection of the applicant as a homosexual, and it will be more convenient to discuss them together.

D.1  Grounds 1 and 3: Wrongly rejected the applicant had lived a life as a homosexual man

10.In relation to these two grounds, the applicant submitted at the hearing that the Board had only asked him general questions and it was later in the hearing that he was specifically asked about how he felt. He stated that he was not given sufficient opportunity to clarify. The applicant cited portions of the Transcript to support his arguments.

11.In the Board’s Decision, the Board rejected the applicant’s credibility because it found that the applicant did not show any shameful feelings as a homosexual. In [37], the Board stated:

“But the [applicant’s] answer that he accepted and loved himself as a response as to why up until that point in the hearing he had not expressed any experience of feeling shame did not persuade me he was providing genuine evidence of a life lived as a homosexual male. He did not display any reflection or experience of the process he went through up until he reached such a state of self-acceptance. The vagueness and lack of reflection in the [applicant’s] evidence is something that I consider weighs against accepting his account as being credible”

12.The Board’s above conclusion appeared to have based on its own assumption that homosexual people, being members of sexual minorities, would have necessarily shame feelings. The Board did not accept the applicant’s evidence that stated in the contrary when the applicant told the Board that:

“I never felt ashamed of myself… I totally accept how I was, how I am, this is who I am. If I don’t accept that, how come people around me are supposed to love me, accept me for who I am? I totally made peace with that a long time ago”.[3]

13.Before rejecting the applicant’s evidence that he had lived a life as a homosexual on the basis of his lack of shame, a high standard of fairness would have obliged the Board to give the applicant an opportunity to adduce additional evidence about his sexual orientation: See Re Masud Md[4], ST v Betty Kwan  [5] and Prabakar v Secretary for Security[6]. 

14.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness when it rejected the central part of the applicant’s claim that he was a homosexual male. The Board should adhere to a rule of fair play and professional practice applicable to non-foulement claim hearings as laid down in the English authority of Brown v Dunn (1894) 6 R 67, which was applied by analogy by the Court of Appeal in Re Masud Md[7]. The rule in Brown v Dunn:

“[32] … requires that if a cross-examiner intends to challenge a witness's evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

[33] There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

15.While the rule of Brown v Dunn was usually considered in the context of where a claimant has remained silent, the rule of fairness also means that where a decision-maker decides to make an adverse finding on a particular aspect which is going to be fatal to a claimant’s claim, “the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached”: Re Masud Md at [33].

16.In the present case, the Board did not seem to have challenged the applicant’s lack of shame and informed him that it would lead to an adverse finding against him so that the applicant would be given an opportunity to clarify. The Board’s rejecting of the applicant having lived as a homosexual male was in fact inconsistent with the Board’s earlier acceptance of the applicant’s evidence of his former relationships with men and women in Gambia ([37] of the Board’s Decision). The later contradictory conclusion by the Board in rejecting the applicant’s evidence of having lived a life as a homosexual seems to be unreasonable and irrational.

17.At the hearing before it, the Board had in fact questioned in detail about the applicant’s early experience and feelings of his gay relationship when he was a youngster. It was the applicant’s evidence that he started to feel different when he was in junior school around the age of 12. Then when he was a teenager, he felt totally different. When he had the first gay relationship in the first year of high school, he stated that “it was the first time that I had to be myself. Everything was fitting well”. When he realized his sexuality “it was surprising for” him’.[8]

18.Since the Board had not queried this part of the applicant’s early gay experience and feelings, and seemed to have in fact accepted it, the Board’s conclusion at [37] of the Board’s Decision appeared to have been irrational.

19.Further, in finding that the applicant had not provided a genuine evidence of a life lived as a homosexual male, the Board also seems to have fallen into the similar error identified in JB (DR Congo) v Home Secretary[9]. Like the JB (DR Congo) case, the Board in this case “has given no indication about the areas in which [it] found the [applicant] to be vague. Given that the [applicant] appeared before it, if the Board had thought that the [applicant] needed to give more detail than he had, he should have sought such details and if the [applicant] had not provided the detail then the Adjudicator could properly have concluded that he had been evasive in his evidence”: JB (DR Congo) at [7].

20.By merely stating that “vagueness and lack of reflection” that the applicant did not live a life as a homosexual male, the Board appeared to have erroneously applied its subjective common sense. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[10] (which was later followed in TI v Winston Leung[11] at [61]). A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: TI [12]at [61].

21.In light of the lack of meaningful assessment of this portion of the applicant’s evidence, the lack of consistent reasoning for rejecting this part of the evidence and the fact that the Board has apparently applied its own common sense or assumptions in taking the view that this evidence was vague and not genuine, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.

D.3 Ground 2: Wrongly made assumptions, and rejected the “incident” by using the Board’s own incomplete and misconstrued understanding

22.The Board was alive to the significance of its finding on the “incident”, recognizing that “without the incident, there is no other evidence from [the applicant] to explain how his family, friends or wider society even became aware he is homosexual”. The Board however rejected the applicant’s account of the “incident”. It did not accept the applicant’s evidence that he was identifiable by his neighbours, and that the applicant was able to run for 7 to 8 minutes without anyone from the opposite direction attempting to stop him (Board’s Decision [40] and [41]).

23.The applicant submitted that the Board’s conclusion that the incident did not occur lacked procedural fairness. It was contended that the Board had made assumptions without making adequate enquiries. The applicant submitted that by disbelieving the applicant’s account that he had been seen by people who were on the way to the mosque for the morning prayer, Board was only making its own assumption such as the sunrise time in December in Gambia.

24.It is trite that a high standard of fairness obliges a decision-maker to consider all relevant considerations[13], including taking into account every factor that might tell in favour of a claimant [14]. Further, a decision-maker is required to adopt an active role by drawing attention to a claimant/ an applicant “matters that needed clarification or elaboration so that they can be addressed by” the claimant/the applicant. This is important, as a decision-maker/the Board cannot assume that a claimant/an applicant can foresee all the points troubling a decision-maker / the Board[15].

25.The Board’s determination that the “incident” occurred in the middle of the “pre-dawn” darkness appeared to have been based on the following evidence at the hearing[16].

Applicant: …the first call [for the morning prayer] should have already taken place.

Board: The call to prayer had already occurred?

Applicant: Yeah.

…

Board: … So that’s 6 something, 6 in the morning, it’s still very dark there, just like the middle of the night. Then how can anybody recognize it was you if it’s so dark at night? 

Applicant:… it’s not so dark that you’re not going to see where you’re going , you need a torch to walk with. Most of the homes, lights are on.

Board: Why are people’s lights on so early in the morning? 

Applicant: Some people have lights at their gates, so most of the roads are a bit clear when you walk. People get up very early, some are preparing for work, some are going to pray.

26.According to the evidence outlined above, it does not seem to have been the applicant’s evidence that when the incident took place, it was a “pre-dawn” darkness. Quite the contrary. It was the applicant evidence that when he ran into people, it was after call for morning prayer. He in fact did not hear call for morning prayer. In fact, the applicant emphasized that it was not so dark because there would be lights from homes and lights from the gates of some of the houses. In the circumstances, the Board’s response that it happened around “6” in the morning appeared to have been the Board’s own assumption. Further, the Board’s finding of “pre-dawn darkness” appears also to have been without evidential basis. It follows that its rejection of the applicant’s evidence that he could be identified by people appears to be irrational. In the circumstances, the Board seems to have erred in having made its own an assumption without having taken into account all relevant considerations such as the time of the sunrise at the time, the time for the call to the morning prayer etc.

27.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.

E.  Conclusion

28.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

29.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

30.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

31.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Dated the 31^st day of July 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