NJIE SAMUEL JOHN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party;

2.  Extension of time to file the application for leave to apply for Judicial Review) be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 30 August 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 18 May 2020 (the “Board’s Decision”).

2.  The Applicant only named the Board as the proposed respondent. As it is usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party and to ensure that the parties are properly named, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 22 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant seeks non-refoulement protection because he fears that he would be killed if he was to return to Gambia because of his opposition to the regime of President Yahya Jammeh.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 18 August 2020. However, the Form 86 was filed late for about 1 year.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

7.  In the present case, the delay of about 1 year is, on any view, significant. In his Form 86 and the affidavit accompanying the Form 86, the Applicant has failed to make any request for extension of time or provide any explanation for the delay. At the Hearing, the Applicant claimed that he only found out about the Board’s Decision when he was informed by the Immigration Department in August 2021. I have considerable doubt as to whether his bare assertion (which is not made on affidavit) is believable but I am prepared to assume for the present purposes that he has an innocent explanation.

8.  In my view, the critical factor in deciding whether to exercise my discretion to extend time is the substantive merits of the Applicant’s claim. If it is bound to fail, no meaningful purpose can be served by granting leave even if I am prepared to assume in favour of the Applicant that he has an innocuous explanation for the delay. Hence, as a matter of expediency, I should focus on the merits of the Leave Application.

Merits

9.  It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

10.  In the Form 86 and the accompanying supporting affidavit, the Applicant did not advance any ground in support of the Leave Application. 

11.  Having rigorously examined the Board’s Decision, the papers 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 all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness, having regard to the following in particular:-

(1)   The Board was entitled to reject the Applicant’s application to reopen his non-refoulement claim:-

(a)   The Board was plainly correct to find that the Applicant had failed to provide any good reasons for the substantial delay of 12 weeks to file his claim (at §§15-21).

(b)   I am also satisfied that the Board has correctly applied the test laid down by the Court of Appeal in Re Qasim Ali [2019] HKCA 430 to consider relevant matters of fact which would include the substantive merits of the non-refoulement claim as required under the then applicable version of s.37ZT(2) of the Immigration Ordinance (Cap 115) (§14).

(c)   On the merits, I do not see any basis to interfere with the Board’s finding that there was no risk of threat to the Applicant if he returns to Gambia (§§25-32). As analysed by the Board, based on relevant Country of Origin Information (“COI”), there was a change in the Gambian government after the president (who was in power for 22 years) was defeated by the opposition in an election. The Applicant has failed to provide any explanation as how he would remain at risk notwithstanding the change in the political landscape or that state protection would not be available (§26). 

12.  At the Hearing, the Applicant provided the court with further written submissions on the following:-

(1)   The Jammeh regime in Gambia was brutal and had killed up to 156 people including students, journalists and even foreigners.

(2)   The Applicant was involved in part of the opposition movement. The Jammeh regime is still influential despite the formation of new government in 2021.

(3)   He also submitted a report from a website called “justiceinfo.net” which contained a description of the history of political violence in Gambia since 2000 (the “Report”).

13.  I do see how the further submissions can assist the Applicant’s case:-

(1)   There is plainly no evidence to support the Applicant’s bare assertion of continuation of political violence since the change of government.

(2)   There is nothing in the Report (which I assume to be credible) which indicates that the Applicant will remain at risk in Gambia:-

(a)   President Jammeh has been in exile and is no longer in power.

(b)   The new government has set up a Truth, Reconciliation and Reparations Commission to investigate the violence under the previous regime and individuals have been recommended for prosecution for perpetration of political violence.

14.  Hence, I am not satisfied that the Board’s Decision contained any legal or procedural errors and that its decision was not Wednesbury unreasonable. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.  I do not see any reason to grant a time extension.

Conclusion

15.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed as it was made out of time.

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