BATHILY BANDIOUGOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 949/2020

[2025] HKCFI 3230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 949 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.   On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 21 October 2019”.

2.   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 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision he received in March 2020 by post.  He also stated a date “3 January 2019” in Form 86.   

2.  In relation to the applicant’s claim for non-refoulement protection, the Director of Immigration (“the Director”) made a decision on 3 January 2019 (“the Director’s Decision”), whereas the Torture Claims Appeal Board (“the Board”) made a decision on 21 October 2019 (“the Board's Decision”).  Thus, the applicant could be referring to the Director’s Decision in Form 86.

3.  However, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).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 consider the Leave Application in respect of the Board’s Decision instead of the Director’s Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000949_2020_files/the_Board's_Decision.pdf

4.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the Director’s Decision.

Amendments

5.  The applicant did not name any putative respondent and named “Torture Claim Appeal Board and Immigration of Howkun” as the putative interested parties in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

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

7.  As aforesaid, the applicant should be applying for leave in respect of the Board’s Decision.  Hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.

Late application

8.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had 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.

9.  However, the applicant filed Form 86 on 21 May 2020, which was 7 months after the Board’s Decision (made on 21 October 2019).  The applicant was hence late for 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

10.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application except his allegation that he received the decision in March 2020. A delay of 4 months is substantial.  There is no justification for the delay when no explanation was given as to why he received the decision late.  There is also no merits of the intended judicial review as discussed below. 

12.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection, as he feared being harmed or killed by the green berets rebel soldiers led by Amadou Sanogo if he were to return to Mali because of his investigation into his missing brother and his affiliation to Mouvement Patriotique pour le Renouveau as well as the general security situation in Mali.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application.  His case was heard on 13 May 2025 but he was absent.  

Grounds for judicial review

17.  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).

18.  However, the applicant failed to identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020.

Discussion

19.  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).

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

21.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 14 June 2019, and the applicant was present at the hearing.  The Board asked questions of the applicant and discussed the applicant’s non-refoulement claim under all the applicable grounds with him.  Hence, the applicant did have the opportunity to make submissions and to present all his evidence and proof to the Board.

22.  By applying high standards of fairness and giving the applicant the benefit of the doubt, the Board accepted most of the applicant’s claim, including the arrest and death of his brother, the flight of his father and his arrest, treatment and being forced to sign a document for his own release.  However, reliable country of origin information (“COI”), which had been discussed with the applicant during the hearing, showed that a new government was formed in 2013, and Amadou Sanogo and his associates, including those the applicant believed to have killed his brother, were arrested and faced trial in Mali. 

23.  The Board also noted and discussed with the applicant the general violence in Mali.  However, the Board found that the risk from general violence was not a personal risk that the applicant was facing or would face.

24.  As can be seen from the Board’s Decision, the Board did consider all the evidence and reliable COI to reach its conclusion that the applicant did not face a real risk of proscribed harm under any of the applicable grounds.  The Board also considered it unnecessary to consider internal relocation because of such a finding.

25.  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).

26.  Thus, there was nothing wrong for the Board not to consider internal relocation when the applicant failed to establish a real risk of any of the proscribed forms of harm.

27.  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. This court finds nothing wrong or unreasonable for the Board to conclude that the applicant was safe to return to Mali and he would not face any of the proscribed forms of harm.

28.  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. 

29.  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

30.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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