SOTOMI ADEDAYO v. TORTURE CLAIMS APPEAL BOARD

HCAL 857/2020

[2025] HKCFI 5389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 857 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 and the applicant being absent in open court;

1.  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 8 May 2020, 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 6 April 2020 (“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/HCAL000857_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 14 September 2017.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection as he feared his life would be in danger if he returned to Gambia because of: (1) his participation in political activities, namely a protest in 2013 to force the then President of Gambia to step down from office, and his name was on a list of persons wanted for execution; and (2) a land dispute with a businessman named Mr Jalo who wanted to obtain his land.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 2 September 2025.

6.  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 The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

7.  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

8.  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).

9.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affidavit dated 8 May 2020. The applicant merely stated in the affidavit that the intended judicial review was against the decision of the adjudicator of the Board as well as the Director of Immigration.

Discussion

10.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore deal with the Leave Application in respect of the Board’s Decision only.

11.  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).

12.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 24 May 2018 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

14.  The Board found little in the applicant’s accepted evidence that indicated he was of adverse interest to anyone in Gambia.

15.  In relation to the applicant’s claimed threat from Mr Jalo due to the land dispute, the Board was prepared to accept that the applicant might have purchased land in Gambia and that a businessman, Mr Jalo, might have indicated to him on a number of occasions that he wished to take possession of the land. However, the Board did not accept that the applicant was ever attacked or injured by Mr Jalo or anybody else as a result of such a desire on Mr Jalo’s part. The Board considered that the applicant had exaggerated his claim and found that while Mr Jalo might have argued with him about transferring the land, when the applicant raised his voice, Mr Jalo left him alone. The Board did not accept that Mr Jalo had ever threatened to harm the applicant, nor that he had any intention to do so in the future.

16.  Regarding the applicant’s alleged threat due to his participation in political activities in 2013, the Board had gone through extensive country of origin information (“COI”) with the applicant at the Board’s hearing. While COI indicated that the political environment in Gambia at the time the applicant travelled to Hong Kong was particularly intense with a failed coup occurring just over a month after he left his country in late 2014, the political situation in Gambia had changed considerably after Adama Barrow sworn in as President in 2017 and the former President fled. The current Gambian government had demonstrated its commitment to the freedom of expression, peaceful assembly and association with an independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including freedom for the press.

17.  The applicant could not explain why in that context the current government or President might seek to harm him.

18.  Further, the Board did not accept that the applicant was a leader or organizer of a protest against the former government of Gambia. It was the applicant’s own evidence that he had never been accused, charged, interrogated, arrested, detained, imprisoned or harmed in any manner whatsoever in Gambia. The Board rejected the applicant’s assertion that the authorities in Gambia considered that he was a person who had disrupted peace and order there, and also rejected that his name had been placed on a list of wanted persons in Gambia.

19.  The Board thus concluded that there was nothing in the applicant’s accepted evidence suggesting that the current Gambian government, Mr Jalo or anybody else would seek to harm him should he return to Gambia.

20.  The Board also took into consideration the large number of medical documentations filed by the applicant. None of those documents indicated to the Board that there was anything unusual about the applicant’s health, nor were any submissions made by the applicant in writing or otherwise in relation to those medical documents. The applicant was unable to say how those documents were relevant to his case as well.

21.  The Board considered that those medical documents did not indicate that the applicant might be subjected to any form of the proscribed harm upon his return to Gambia. The Board found that they did not assist the applicant in establishing his case for non-refoulement protection.

22.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider availability of state protection.

23.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

24.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

25.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. 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 no errors of the Board in reaching its decision based on all the evidence before it.

26.  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.

27.  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

28.  For reasons aforesaid, the Leave Application 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