TOURAY ALIEU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2899/2019

[2025] HKCFI 1374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2899 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 September 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 24 March 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 48, is a national of Gambia. On 22 June 2014, he came to Hong Kong as a visitor. He overstayed since 21 September 2014. On 13 November 2014, he surrendered to the Immigration Department. He lodged a non-refoulement claim with the Immigration Department by written representation dated 12 December 2014 on the basis that, if refouled, he will be arrested and tortured by the Gambian Police, the Military or the NIA (“his enemies”).

5.   According to the applicant, in 2010 when he was a school teacher in Bokaloho. One of the pupils was killed by a government security service man. There was a demonstration against the government. He was taken by the police to the police station where he was detained for around 2 or 3 days. Inside the police station, he was beaten up by many police officers with batons all over his body. In 2006, he ran his business of selling second-hand products including spare parts of motor vehicles, carpets, garments and used tyres. In 2014, the government levied heavy taxes on small-medium size businesses. He and others attempted to organize a demonstration. The Gambian military officers arrested them. He was arrested at his shop and taken to the NIA headquarters in Banjul where he was tortured by stripping off his clothes, beating him and molesting his private parts many times for about a week. He was released. He had to receive medical treatment for a couple of days. That is why he left Gambia for Hong Kong.

6.   Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 November 2018 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The immigration officer found that there were inconsistencies in his evidence, which he was unable to provide him with good explanations. The immigration officer also found that state protection will be available if he returns to Gambia and internal relocation is viable. [12]-[20]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 23 July 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that it accepted that the applicant might have been tortured in Gambia in 2001 and 2004 as he alleged. However, it had referred to the country of origin information (“COI”) and found that the situations in Gambia had improved and it is unlikely that the applicant will be harmed or killed by those military people he mentioned as time had passed and there was no evidence that he will be tortured by his enemies if he returns to Gambia. It therefore concluded that there will not be any real risk that he will be subjected to the applicable risks if he returns to Gambia and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not accept his evidence.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  It is within the Board’s province to assessment the applicant’s evidence. His complaint has no merit.

17.  The applicant has raised no valid ground to challenge the Board’s findings.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.