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

HCAL 3079/2019

[2025] HKCFI 1850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3079 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 September 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. He appeared before the Court on 11 April 2025.

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. He arrived in Hong Kong on 27 August 2017 on the strength of his Gambian passport but did not depart and overstayed since 26 November 2016. On 8 December 2014, he surrendered to the Immigration Department. In due course, the applicant lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by his half-brother due to a land dispute.

6.  According to the applicant, he had three incidents where he was either threatened or physically injured by his half-brother due to his institution of legal proceedings to recover the ownership of land.

7.  His half-brother had forced his father to transfer a piece of land to him. The applicant reported the matter to police and tried to take out legal action to recover the piece of land. His half-brother brought some people to his shop where they assaulted him and burnt down his shop. He was not seriously injured. The applicant then received death threat from his half-brother. He had to leave for Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 September 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 low intensity and frequency of past ill-treatment is indicative that the future risk of being harmed or killed is not likely to materialize and not as imminent and substantial [11-15], state protection is available [16]; and internal relocation alternatives are available and reasonable if he returns to Gambia. [17]

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 29 July 2019, the Board conducted an oral hearing for his appeal. At the hearing, the applicant confirmed that there were no further documents and confirmed his details [20-49].

11.  Having considered the evidence, the Board accepted the applicant’s evidence, though did not accept that the applicant’s half-brother had any genuine intention to inflict serious harm of any kind which necessitates non-refoulement protection [76]. 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 on 18 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground.

13.  In his affirmation in support of his application, the applicant the applicant exhibited the Board’s Decision but again did not put forth any grounds.

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. Before me, the applicant said that he was not happy with the Board’s Decision.

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.