KINTEH ANSU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1197/2020

[2025] HKCFI 5557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1197 OF 2020

Application for leave to apply for judicial review

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

Following:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 15 May 2020.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 3 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 16 June 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 15 May 2020.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001197_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and affirmed the decision of the Director of Immigration (“the Director”) dated 28 September 2018, which rejected his non-refoulement claim.

Amendments

3.  The applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondents in Form 86, when only the Board should be the putative respondent.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would face serious harm as he was adversely targeted by a local paramilitary group known as “Junglers” who committed crimes with impunity.

Oral hearing

8.  The applicant requested for an oral hearing and his case was heard on 4 September 2025.  The applicant was present.  He was assisted by a Mandinka (the applicant’s language) interpreter through remote hearing.

9.  The applicant had explicitly stated in Form 86 that he reserved the right to amend the grounds on which relief is sought.  When this court asked him what other grounds he intended to advance for his intended judicial review, he replied that he wanted to raise a new ground in relation to interpretation.  He said that the interpreter at the interview before the Director did not translate what he said correctly.  He could recall one example of that, ie when he said he was beaten, the interpreter said he was shot.  More importantly, he said that there was no interpreter arranged to assist him at the oral hearing before the Board.  He was not well acquainted with English language as he did not have any formal education.

10.  This court also invited the applicant to elaborate on the other ground for his intended judicial review which was stated in Form 86, namely that the Board’s Decision was substantially unfair.  Again, the applicant told this court that it was unfair for the Board to hear his case in English instead of providing appropriate interpretation service for him.  He added that he accepted the hearing before the Board to proceed in English out of frustration as he wanted to go on with the case.  He also mentioned that his story was reported in newspaper but the Board treated it as not happened, and it was painful for him when what actually happened was treated as false.

Grounds for judicial review

11.  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).

12.  As aforesaid, he raised the ground that the Board’s Decision was substantially unfair in Form 86, and at the oral hearing before this court, he raised the ground that the Board did not provide interpretation service for him.

Discussion

13.  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).

14.  Thus, it is for this court to scrutinize the Board’s Decision and to intervene when there are errors of law, procedural unfairness, or irrationality.

15.  The applicant’s complaint is that there was a lack of interpretation service at the Board’s hearing which was prejudicial to him.

16.  As can be seen from paragraph 24 of the Board’s Decision, the Board did proceed with the hearing without any interpreter for the applicant, but the Board was satisfied that the hearing could be conducted in English.  Paragraph 24 of the Board’s Decision reads as follows:-

“At the beginning of the Hearing, the Appellant was asked whether to adopt his answers in the NCF[1] and RI[2] as part of his evidence to the Board. Nevertheless, he expressed that he could not read written English but he understood and spoke oral English. In such circumstances, he was asked to tell the Board the whole of his account again during the Hearing. The Appellant expressed himself very clearly in English without assistance of an interpreter and I had no difficulty communicating with him in English during the Hearing.”

17.  From the contents of paragraph 24 of the Board’s Decision, it seems that it was the Board who decided to proceed with the hearing without an interpreter for the applicant, as the Board was satisfied that the applicant could effectively communicate with him in English during the hearing.  However, the Board did not ask the applicant whether he could indeed proceed with the hearing in English.  Thus, the applicant was not afforded with a choice to use his own language to proceed with the hearing.

18.  Moreover, the Board relied on various pieces of country of origin information (“COI”) to find that reasonably sufficient state protection was available to the applicant in Gambia.  However, as the applicant had already told the Board that he could not read written English, the Board should be aware that it would not be possible for the applicant to understand what were written in the COI relied on by it and the applicant could not comment on the information contained therein either.

19.  It is therefore clear to this court or at least arguable that the applicant was not afforded a fair hearing before the Board when no interpreter was arranged for the applicant.  The applicant was deprived of his right to use a language of his choice and this does not accord with the high standards of fairness required in such cases where life and limb are at stake.

20.  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 does have a reasonably arguable claim which enjoys realistic prospects of success.  Hence, leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

21.  For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

22.  The applicant is directed to issue an originating summons for the intended judicial review on or before 3 December 2025 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

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