SALAH APHEY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1134/2020

[2025] HKCFI 5533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1134 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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 26 May 2020”. 

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 9 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 26 May 2020 without identifying the decision maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 26 May 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 September 2018 (“the Director’s Decision”).  The applicant also confirmed at the oral hearing before this court on 2 September 2025 that the Board’s Decision was the subject matter of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001134_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party.

5.  In fact, the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the applicant had confirmed that the Board’s Decision was the decision in respect of which relief is sought in the Leave Application.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 26 May 2020”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to Mali, he would be killed by member of the rebel group Azawad due to his refusal to join them when they sought to recruit him in Gao in 2013.  He claimed that he was introduced to the group by a Aboubakar Cisse (“AC”) and attended several meetings.  After he indicated that he wished to quit, AC reported his refusal to his boss, who was one of the leaders of the rebel group, who had ordered that he be killed because he had accessed secret information.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 September 2025.

11.  When this court asked the applicant for the grounds for his intended judicial review, the applicant merely said that his problem was still there and had not finished, but he had nothing further to say.

Grounds for judicial review

12.  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).

13.  However, the applicant did not assert any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 9 June 2020.  

14.  As aforesaid, at the oral hearing, the applicant merely said that his problem had not finished, which is not a valid ground for the intended judicial review.

Discussion

15.  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).

16.  The applicant’s alleged problem in his own country had been duly considered by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. 

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

18.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 13 January 2020 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

19.  The Board found that the applicant’s evidence about his claims at the hearing was disjointed, contradictory and confusing, which conflicted considerably with his earlier claims.  Given the applicant’s lack of knowledge about the conflict in Mali at the relevant time and the role played by the Azawad rebel group, the Board did not consider that his claims that he had been involved in meetings of the group and was a target for recruitment by the group in 2013 had any credibility whatsoever.  The Board did not accept that his claims to fear harm by AC, Azawad or anyone else was credible.

20.  Given its findings as summarised above, the Board found no substantial grounds for finding that there was a real risk the applicant would suffer persecution within the meaning of the RC[1] should he return to Mali.  It also found that the applicant did not face a real risk of being tortured, ill-treated or arbitrarily deprived of life upon refoulement.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

21.  The Board did not consider availability of state protection and viability of internal relocation.   However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

22.  As to internal relocation, 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).

23.  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.

24.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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. 

26.  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

27.  For reasons aforesaid, the Leave Application is dismissed.

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