JOBE EBRIMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 958/2020

[2025] HKCFI 3333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 958 OF 2020

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 oral submissions by the applicant in open court;

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 15 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 18 May 2020 and filed on 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of Immigration Department dated 24 September 2019 and the decision of the Torture Claims Appeal Board (“the Board”) dated 15 May 2020 (“the Board’s Decision”).

2.  The Board made the Board’s Decision to dismiss the applicant’s petition/appeal against the decision of the Director of Immigration (“the Director”) dated 24 September 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.  At the oral hearing of the Leave Application before this court on 20 May 2025, this court explained to the applicant that only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application is in respect of the Board’s Decision only.

4.  Thus, this court will only consider the Leave Application in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000958_2020_files/the_Board's_Decision.pdf

5.  The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision accordingly.

Amendments

6.  In Form 86, the applicant wrongly spelt the Board’s name and named both the Board and Immigration Department as the putative respondents as well as the putative interested parties, when only the Board should be the putative respondent and only the Director should be the putative interested party.

7.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

8.  As aforesaid, the Leave Application should be in respect of the Board’s Decision only. Hence, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 15 May 2020”.

The applicant’s case

9.  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.

10.  In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would be at risk of harm from his father, the police, the government and the Gambian society for his homosexuality.

Oral hearing

11.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 20 May 2025.

12.  At the hearing, the applicant said that it was not safe for him to return to Gambia because of his homosexuality. One homosexual person was arrested in 2003 because of his sexual orientation. Recently, two other homosexual persons were also arrested for the same reason. He would similarly be arrested should he return to Gambia. Moreover, the applicant said that the Gambian Parliament has recently voted against the rights of homosexuals. The applicant also said that he had evidence saved in his mobile phone and he wanted to show them to this court.

Grounds for judicial review

13.  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).

14.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 21 May 2020. He merely stated in his affirmation that he did not agree with the Board’s Decision and that he could not go back to his country because his life would be in danger and at high risk.

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.  It is therefore not for this court to re-assess the applicant’s claims again. What the applicant raised at the oral hearing about homosexual people being arrested in Gambia and the Gambian Parliament has recently voted against the rights of homosexuals are not for this court to consider. It is also not for this court to receive new evidence contained in the applicant’s phone. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. Hence, the applicant’s allegations at the oral hearing cannot amount to any valid ground for the intended judicial review.

17.  Nevertheless, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

18.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 December 2019. The applicant was present and was given the chance to present his case to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.

19.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found that the applicant’s account was rather unconvincing and did not accept the applicant was telling the truth about the events or his sexual orientation. On evidence, the Board found that even assuming the applicant was a homosexual, his projected personal characteristics and living pattern were discrete. The Board did not accept his account that he would wish to change his living manner in that he did not wish to conceal his sexual orientation anymore, as it was quite contrary to his conduct and behavior in Gambia throughout.

20.  The Board found that the applicant’s family took no follow-up action to stop him from leading a life of his choice, despite that he suspected his father wanted to kill him. The Board concluded that if his family was against homosexuality, the conduct of his family indicated an abandonment attitude rather than a desire to cause harm to him.

21.  Significantly, the applicant had never been bothered by the police or the Gambian authorities throughout the time he was living in Gambia, be it during the time he had his gay relationship with Modou from 2005 to 2008 or with Abdou since 2017. There was also no incident or event to show that the applicant had been subjected to discrimination in his community after he discovered his gay orientation since 2005. In light of the then most updated country of origin information (“COI”) for the applicant’s country, the Board found that although “aggravated homosexuality” is a crime for which conviction is punishable by life imprisonment, the law is not really enforced. In addition, the then Gambian president actually dismissed homosexuality as a non-issue in the country. The Board also noted that the then Gambian government at the time of the Board’s hearing had a more liberal stance towards sexual orientation.

22.  Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant would not reasonably likely be at risk of harm from his father or his other family members as well as the Gambian government. The applicant was therefore not entitled to non-refoulement protection on any of the applicable grounds under the USM.

23.  This court notes that the Board did not make findings on internal relocation for the applicant. However, 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).

24.  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 further consider internal relocation.

25.  The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

26.  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.

27.  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

28.  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