SAMATEH MATARR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 898/2025, [2026] HKCA 183

On Appeal From [2025] HKCFI 4560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 898 OF 2025

(ON APPEAL FROM HCAL NO 1824 OF 2020)

_________________

_________________

_________________

J U D G M E N T

_________________

Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Martin Wong (“Judge”) on 10 October 2025 dismissing the application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 1 November 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 28 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Gambia born in 1983 and his claim was made on the basis that if he returned to Gambia, the government would harm or kill him due to his association with his maternal uncle who was arrested for false drug trafficking charges. Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have all been set out in the Board’s decision: see [7] of the Form CALL-1. The Judge has set out the grounds advanced by the applicant in support of the application for leave to apply for judicial review, including the applicant’s assertion that he married a Hong Kong citizen and his application for a Hong Kong identity card was still pending, and his reasons for refusing leave: see [5] – [11] of the Form CALL-1. We shall not repeat them here.

Appeal to this Court

3.  On 20 October 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that the Judge did not scrutinize the applicant’s problem and the Board’s decision and that he would be killed by his enemies if he returned to his home country.

4.  The applicant has lodged written submissions in which he stated that the Judge erred in not finding the procedural unfairness of the Director and the Board as they were required to give reasons to justify their decisions, that the Judge did not analyse his claim properly, that the Board failed to give him sufficient opportunity to arrange relevant evidence, that his human rights and the high standard of fairness are involved, that the Board had significantly relied on sources of news that were not officially recognized or simply hearsay, and that the Board failed to assess whether state protection existed in his home country. He further repeated the basis of his non-refoulement claim.   

5.  At the hearing, the applicant stated that he has found peace in Hong Kong, that he is married to a Hong Kong citizen, that he is apt at playing various sports, and that he can give back to the community.

Discussion

6.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.  In the present case, the Board found that the applicant’s claim of the fear of the government administration of former President Yahya Jammeh, when considered in the context of the subsequent change of government in late 2016/ early 2017, became limited to the fear and speculation of the present government administration’s possible investigations of his and his father’s business dealings with the former Jammeh administration. The Board found that there was no real risk of harm upon refoulement as alleged, because it found the applicant’s fear of potential prosecution to be entirely speculative and that the applicant was unable to advance any supporting evidence. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

8.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. At the hearing before the Judge, the applicant only informed the Judge about his pending Hong Kong Identity Card application as a spouse of a Hong Kong citizen and raised no other matters. We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.

10.  This decision concerns of course only the applicant’s claim for non-refoulement protection, and does not in any way deal with his application to the Director for permission to stay in Hong Kong as the spouse of a Hong Kong permanent resident, if any.