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HCAL 3397/2019
[2025] HKCFI 4210
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3397 OF 2019
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Thiam Mohamed |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, 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 27 September 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 15 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 27 September 2019 without identifying the decision maker. However, a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 27 September 2019 (“the Board’s Decision”) was annexed to his supporting affirmation dated 15 November 2019. It is clear that the applicant must be referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003397_2019_files/the_Board's_Decision.pdf
2. The Board decided that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 June 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named “USM” as the putative respondent and “T-C-A-B” as the putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
5. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 27 September 2019”.
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 he feared harm from people of opposing political parties to the Congress for Democracy and Progress Party (“CDP”), of which he and his father were active members. In May 2015 when the applicant was in Hong Kong for business, his mother told him that some people from the People’s Democratic Union (“PDU”) had broken into his sewing shop as well as his family home. The PDU rampaged his area targeting members of CDP, especially his father due to his popularity in the neighbourhood. If refouled to Burkina Faso, he feared he would be hunted down by PDU or the government led by President Roch Marc Christain Kabore who created a new political party People’s Movement for Progress, which was closely connected to PDU because the new president had been their supporter for a long time. He learnt from the media that there were a lot of killing incidents of CDP and many CDP people were sent to jail.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application, but he was absent at the hearing on 3 July 2025.
9. 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.
10. 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
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. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 November 2019.
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] HKCA524).
14. Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 August 2019 and the applicant was present. Thus, the applicant did have the chance to present his case to the Board in person.
16. The Board questioned the applicant for details of his claims but found that the applicant failed to make out a case where he needed non-refoulement protection.
17. The Board found that the applicant had never been assaulted or injured by anyone. It was his father who, due to his popularity in the neighbourhood, was targeted. The applicant had only been performing low tier work for his father by liaising people in the area and distributing party posters. He was not the target when people broke into his shop. Even though the applicant alleged that there were fights, conflicts and even killings among the different political parties in his area, those were conflicts between different political parties. Neither he nor his family were personally targeted.
18. The applicant and his family continued to stay in the same place despite people broke into his shop and took the machines away as early as 2014. The enemies had no intention to cause them any harm. The applicant actually did not know who those people were, and he only thought they were from PDU. It was also only the applicant’s speculation that people would hunt him down.
19. The Board found from country of origin information (“COI”) that there were indeed reports reflecting the inefficiency of the police in Burkina Faso. However, there were objective COI that showed reforms had been and were on-going in Burkina Faso and that the Burkinabe government had taken practical steps to improve their effectiveness and monitor the conduct of Burkinabe police. The Board was satisfied that the Burkinabe government had taken action to protect the rights of its citizens. Thus, state protection would be available upon the applicant’s return to Burkina Faso.
20. The Board also found internal relocation viable for the applicant. The Board found that it would not be unduly harsh for the applicant, being an able-bodied adult with 11 years of education and 15 years of work experience, to relocate to other parts of Burkina Faso such as Bobo-Dioulasso to make a living and to avoid people from PDU in his home area.
21. In light of its findings, the Board concluded that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to Burkina Faso. Thus, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected his non-refoulement claim.
22. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
23. 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.
24. In Po Fun Chan vWinnie Cheung (2007) 10HKCFAR676, the Court of Final Appeal held that 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16thday of September 2025
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( Irene LEE )
for Registrar, 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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 16 September 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12433/18/7/183/BFA2
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1276/18
(Formerly RBCZ 13027/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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