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HCAL 278/2020
[2025] HKCFI 2113
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 278 of 2020
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BETWEEN
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Jobarteh Lamin |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion; and
2. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 2 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 12 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000278_2020_files/the_Board's_Decision.pdf
2. In his Form 86, the applicant named the “USM” as the proposed respondent, and “T.C.A.B” as the interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended.
3. As the request of the applicant for a hearing of the Leave Application, this court scheduled a hearing on 13 May 2025. Before the hearing on 18 March 2025, the Director wrote to inform the Court that the applicant has been approved to stay in Hong Kong as a dependent under an application for entry for residence. In other words, the applicant is currently a Hong Kong resident. Thus, his non-refoulement claim may now be moot.
4. The applicant attended the hearing in person and told this court he had been married to a Hong Kong citizen, and been issued a Hong Kong Identity Card. Hence, he no longer requires any non-refoulement protection. He wishes to cancel all the claims including the Leave Application.
5. In the present case, the Board rejected the claim because the applicant did not receive any summons to barracks due to missing his rotation, and there is no evidence that he is wanted for court martial. The Board also found the political situation in Gambia has changed to the extent that the claim’s factual matrix is no longer relevant, and the human rights situation has improved under the current president, such that he would be properly treated for going absent without leave. The Board also found that the applicant had not been mistreated in Gambia. The Board thus found that there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
6. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Decisions of the Director and the Board. In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[1].
7. In the circumstances, I think it is appropriate, as a matter of practice, to dismiss his Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at §9).
Orders
1. The Form 86 is amended on the court’s own motion
2. The Leave Application be dismissed
Dated the 26th day of May 2025.
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( Alfred CHAN )
for Registrar, High Court
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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 the Applicant’s 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 to the Applicant
on 26/5/2025
Jobarteh Lamin
Applicant’s ref. no:
Nil |
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Sent 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 26/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14069/18/10/411/GA139
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3540/18 (Formerly RBCZ 10184/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676
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