BARROW BUBACARR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1760/2020

[2025] HKCFI 4642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1760 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   The Applicant’s Form 86 should be amended to name only the DOI as a putative interested party; and

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 2 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 December 2019, which affirmed a decision by the Director of Immigration (the “DOI”) dated 22 July 2019 in refusing his non-refoulement protection claim.  He named the TCAB as both the proposed respondent and an interested party.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

3.  The Applicant requested for a hearing but due to inclement weather, the hearing scheduled on 8 September 2025 was adjourned to 9 September 2025.  The Applicant attended and when asked if he had anything to add he confirmed that he had not.

4.  This application is plainly out of time and there is no application made for extension of time.  Despite that, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

5.  The Applicant is a national of Gambia.  He seeks non-refoulement protection on the basis that if he was returned, he would be killed by members of a gang that he had joined but wanted to part ways with. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  Apart from stating that he was “not satisfied” with the TCAB Decision and reiterating that it would be unsafe for him to return, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in his affirmation filed in support of this application.

8.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and all the materials placed before it [19], including relevant COI [25-31].  There was also an oral hearing before the TCAB.

9.  The TCAB had in mind all the correct principles in relation to the four applicable grounds under the USM [9-18] and after thoroughly analysing the materials and applying these principles came to the finding and conclusion that neither the Applicant’s allegations nor any of the grounds were not made out [33-49].

10.  The TCAB further concluded that internal relocation was available to the Applicant [50-56].

11.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended.  I therefore dismiss the application.

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