CAMARA OMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 304/2020

[2025] HKCFI 2960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 304 OF 2020

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party. 

2.  The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 16 June 2017 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 20 January 2020 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 4 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  the decision of the Director of Immigration (“the Director”) dated 16 June 2017 (“the Director’s 2^nd Decision”); and

(2)  the decision of the Torture Claims Appeal Board ("the Board") dated 20 January 2020 (“the Board's Decision”).

2.  However, only the Board’s Decision is reviewable by judicial process and not the Director’s 2^nd Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s 2^nd Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

3.  The Director in fact made another earlier decision dated 10 December 2015 (“the Director’s 1^st Decision”) which was also superseded by the Board’s Decision.

4.  At the oral hearing before this court on 24 April 2025, the applicant confirmed that the Leave Application was in respect of the Board’s Decision only.

5.  Thus, the Leave Application in respect of the Director’s 2^nd Decision can be dismissed without further consideration.

6.  This court will only consider the Leave Application in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000304_2020_files/the_Board's_Decision.pdf

7.  The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’s 1^st Decision as well as the Director’s 2^nd Decision.

Amendments

8.  The applicant wrongly named the “The Director of Immigration; and The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

9.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared being harmed or killed by government agents from the National Intelligence Agency if he were to return to Gambia, as his uncle, whom he had been living with at the material time, was involved in plotting a coup to overthrow the government and assassinate the then President.

Oral hearing

12.  The applicant requested for an oral hearing of his application and his case was heard on 24 April 2025.

13.  The applicant said that he still had problems in his country and therefore he could not go back. However, he confirmed to this court that all his problems had been presented to the Board and he had nothing new to add.

Grounds for judicial review

14.  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).

15.  The applicant did not state any ground for the intended judicial review in Form 86, but annexed a document to his supporting affirmation dated 4 March 2020 with the title “Grounds on which Relief is sought”. The contents of this document are reproduced as follows:-

“1. The applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

16.  The said document with contents as stated above was in fact an extract of a template used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

17.  First of all, some of the above grounds were directed at the Director. As mentioned, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review. The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

18.  Paragraphs 2, 3 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.

19.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

20.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

21.  In any event, the Board did assess the applicant’s risk of right to life. In fact, the Board found the applicant to be a generally credible witness and that the applicant suffered brutal treatment at the hands of the government agents in 2006 and again in 2013. However, the Board also found that the fact that he had suffered brutal treatment did not of itself indicate that there was a real risk that he would be subjected to such treatment in the event of refoulement to Gambia in the future.

22.  The Board found that the circumstances had changed dramatically in Gambia since the departure of President Jammeh in the December 2016 Presidential elections and the arrival of President Barrow in January 2017 to the extent that there was little to no risk of harm to the applicant in the event of refoulement to Gambia.

23.  The Board had referred to different country of origin information (“COI”) to support the above finding. Hence, the Board did consider but rejected the claim that there was a real danger the applicant would be killed if refouled.

24.  The applicant further asserted in paragraph 1 of the grounds that the Board’s adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

25.  This complaint is simply untrue. The Board had adjourned its scheduled hearing twice to wait for the result of the medical examinations instructed by the Board on the claimed injuries by the applicant. The first two hearings were scheduled for July 2016 and March 2018 respectively.

26.  The applicant filed his Notice of Appeal/Petition to the Board on 15 December 2015 and his Perfected Grounds of Appeal was dated 12 January 2016. This means that the applicant had more than two and a half years to prepare any relevant evidence that he would like to adduce and present to the Board at its hearing, which was finally held on 13 July 2018. Further, the applicant was represented by Duty Lawyer. He could have applied to the Board by himself or through his legal representative for more time to adduce evidence if he needed it.

27.  Thus, it is absolutely groundless for the applicant to complain that the Board’s adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

28.  In the circumstances, this court finds that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

29.  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).

30.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

31.  The Board’s findings were actually in favour of the applicant in that the Board accepted the applicant did suffer brutal treatment as claimed. The Board just found that circumstances had changed dramatically in Gambia to the extent that there would be little to no risk of harm to the applicant in the event of refoulement to Gambia. This finding was based on COI and the Board was entitled to make that finding.

32.  The finding of facts is solely within the ambit of the Board. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board.

33.  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.

34.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

35.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.

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