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HCAL 1932/2020
[2026] HKCFI 934
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1932 OF 2020
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BETWEEN
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Toure Mariam |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 19 August 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 “Sept 2020” and filed on 25 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 19 August 2020 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 19 August 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 June 2018 (“the Director’s Decision”).
3. It is clear that the date of the decision referred to in Form 86 was the date of the Board’s Decision. Hence, the Board’s Decision should be 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/HCAL001932_2020_files/the_Board's_Decision.pdf
4. The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
5. In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board and the Director should be so named respectively.
6. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
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 19 August 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 Ghana and/or Mali, she would be harmed or killed by a money lender named Hajia Ayi (“Ayi”).
Disposal on paper
10. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Thus, the Leave Application is dealt with on paper.
Grounds for judicial review
11. 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).
12. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 23 September 2020.
Discussion
13. 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).
14. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
15. In assessing the appeal by the applicant, the Board held an oral hearing on 8 July 2020. The applicant was present and was given the chance to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.
17. The Board found that the applicant was not a witness of truth and no credence could be attached to her claims. The applicant’s oral evidence was exceptionally vague, self-contradictory, garbled, evasive and inconsistent with what she outlined in Answer 35 contained in her Non-refoulement Claim Form (“NCF”). The Board did not believe that the character of Ayi had ever existed. The Board found the account of the applicant’s connection with Ayi and the burglary of her jewelleries in her spice store a total fabrication which was unsupported by evidence at all.
18. The Board rejected that the applicant’s trip to Hong Kong was due to any fear of being harmed or killed by Ayi. Even on the applicant’s evidence, Ayi had never physically harmed her. The Board found that the true purpose of her trip to Hong Kong was to reunite with her husband, just as she herself stated in Answer 35 of her NCF.
19. Further, the applicant admitted at the Board’s hearing that her allegation that the police in Ghana or Mali were corrupt was just her own assumption. She also admitted that it was her own speculation that someone might pass on to Ayi her whereabouts even if she lived in other places in Ghana or Mali if she was refouled to those two places.
20. Contrary to the applicant’s assumptions and speculations, the Board found that notwithstanding that there were police malpractices and misconduct in the police force in Ghana and Mali, the law provided criminal penalties for official corruption. The Board also found that the applicant would not have difficulty to start her life afresh when she was refouled to Ghana or Mali, as she previously had work experience in trading and selling spice products.
21. The finding of facts including the assessment of evidence and risk of harm was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of February 2026
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( Irene LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 16 February 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 16 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12547/18/7/297/MLI/G1
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1683/18
(Formerly RBCZ 13954/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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