GAI OUSMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 885/2022

[2026] HKCFI 2929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 885 OF 2022

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, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 6 September 2022, 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 4 May 2022. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000885_2022_files/the_Board's_ Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration dated 26 October 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board and “Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

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

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

Late application

6.  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.

7.  However, the applicant filed Form 86 on 6 September 2022, which was more than 4 months after the Board’s Decision (made on 4 May 2022). The applicant was hence late for more than one month 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.

8.  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.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

10.  A delay of more than one month is not insubstantial, and no explanation was given by the applicant at all. More importantly, there is no merits in the intended judicial review as discussed below.

11.  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.

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

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would be harmed or killed by his creditors Ablie Bojang (“Bojang”) and Ousman Cessay due to the applicant’s failure to repay his loans. The applicant also claimed that he was wanted by the Interpol and would be arrested if he returned to Gambia.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 14 May 2026.

16.  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.

17.  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

18.  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).

19.  The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 6 September 2022.

Discussion

20.  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).

21.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

22.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 26 November 2021. The applicant was present and was assisted by an interpreter in the Wolof and English languages. Thus, the applicant was given the opportunity to present his case to the Board in person in Wolof, which he indicated was his first language.

23.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

24.  The Board accepted that the applicant was being pursued by his creditor Bojang due to his non-repayment of a loan taken out in 2004 and his inability to repay it. However, the Board found that the harm the applicant feared was from non-state actors. His dispute with the creditor was a personal dispute and the applicant had never reported any threats or assaults to the authorities in Gambia. The element of state acquiescence was lacking in his case.

25.  On the basis of the available evidence, the Board did not accept that the applicant had been subjected to pain or suffering sufficiently serious to reach the minimum level of severity required for international protection. The applicant’s fear of persecution was not for a Convention reason.

26.  The Board had gone through very extensive country of origin information (“COI”) about the Wolof community to which the applicant belonged. The COI indicated that structures were present for the resolution of conflict within the Wolof community. From the available evidence, it appeared to the Board that the applicant could return to his community to ask for help in trying to further negotiate or resolve the issue.

27.  On the basis of this evidence, the Board considered that further intervention by the Wolof community hierarchy would assist the applicant in gaining additional time to resettle in his country, get work and negotiate a payment plan to repay his debt or find an alternative solution. The Board accepted that the Wolof community hierarchy could intervene in the case of physical threats and violence.

28.  COI also indicated that legal recourse might be available to the applicant on his return. The Board found that there were other options open to the applicant, such as applying for bankruptcy.

29.  On the issue of state protection, the Board noted that the applicant had never sought protection from the authorities for the assaults or threats and had speculated that they would not help him because of Bojang’s association with them. According to the applicant, Bojang was associated with the previous regime in Gambia. However, the Board found from COI that since the applicant left his country, there had been a change of government and there had been reforms in a number of areas by the new government. Although corruption remained to be a problem, the Board found from COI that there was effective protection especially since the change of government.

30.  The Board found the identity of the second creditor, namely Ousman Cessay, doubtful. The applicant’s failure to mention this second creditor in his Non-refoulement Claim Form was questionable and cast doubt on the applicant’s credibility. Even if there was such a second creditor, the Board explicitly stated that its overall findings were the same, in that there were dispute resolution mechanisms within the applicant’s community to try to resolve the dispute with his creditors and in terms of state protection, the applicant had not provided any persuasive evidence that assistance would not be available to him.

31.  The Board also addressed a new issue raised by the applicant, namely that he was wanted by the Interpol and would be arrested if he returned to Gambia. The Board found that a search of the applicant’s name did not yield any results for a red notice in the Interpol website. Further, even if the applicant was reported to Interpol as claimed, the Board noted that a person fleeing from personal debt and who defaulted on his loans did not fit within the scope of work done by this agency. The Board therefore gave no weight to this allegation.

32.  Thus, the Board found that the applicant did not face any genuine risk of any of the proscribed forms of harm under the USM if he were refouled to Gambia.

33.  Although the Board did not make findings as to internal relocation for the applicant, 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).

34.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

35.  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. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

36.  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.

37.  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

38.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack 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