ADISA ALH YUSUPHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2592/2019

[2025] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2592 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated  30 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 24 February 2025. I shall deal with his application on the papers.

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 is a national of Gambia. The applicant arrived in Hong Kong by the strength of his Gambian passport and permitted to remain as a visitor until 13 May 2014 but instead overstayed. The applicant surrendered to the Immigration Department on 30 July 2014 and in due course lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by (1) some soldiers who had twice threatened the applicant and other supports of the United Democratic Party (“UDP”) in or about 2008 because of his participation in UDP gatherings; and (ii) some soldiers who kidnapped and detained the applicant in 2013 because he was believed to have mobilized some youths to act against the government under the rule of Yahya Jammeh.

6.  According to the applicant, he became a UDP supporter in 2008 and in the same year, he was threatened twice within 3 months by soldiers but was unharmed. In 2013, the applicant was detained by soldiers and was wounded but was later released.

7.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the level of risk of harm from the applicant’s enemies upon his return is assessed to be low due to the low intensity and frequency of past ill-treatment; the perceived harm is not imminent; the alleged fear is speculative and retrospective in nature; and the behaviours were inconsistent with those who was genuinely in fear of his own safety [11-15]; state protection was available [16]; and internal relocation alternatives were available and reasonable [17].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 8 May 2019, the Board conducted an oral hearing for his appeal, during which the applicant confirmed his biographical details and that there were no additional documents to submit [32-49]. The Board gave an opportunity for the applicant to explain his situation, and stated that the media reports on the prosecution of officials in Gambia could not be relied upon [49].

11.  Having considered the evidence, the Board found that the applicant was partly credible and partly not credible as a witness [76]. In any event, having considered the Country of Origin Information, the Board found that the applicant’s situation was potentially dangerous prior to December 2016, in light of the significant changes that have occurred there with the change of government, the Board did not accept the applicant faces a real risk of harm of any kind from the supporters who might remain loyal to the former president [89]. Further, the Board considered, in relation to the possible risk of harm from soldiers of the former Jammeh regime, that the applicant did not submit any credible evidence against the applicant [91-94]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

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.