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HCAL 229/2022
[2026] HKCFI 2988
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 229 OF 2022
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BETWEEN
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Badjie Modou |
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 relief is sought be amended to “Torture Claims Appeal Board’s decision dated 28 April 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 20 April 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
“The decision dated 30 August 2019 – rejecting my Non-refoulement Claim Immigration Department”
2. The decision dated 30 August 2019 was actually a decision made by the Director of Immigration (“the Director”) regarding the applicant’s non-refoulement claim (“the Director’s Decision”). The applicant’s appeal/petition against the Director’s Decision was dismissed by the Torture Claims Appeal Board (“the Board”) by its decision dated 28 April 2020 (“the Board’s Decision”). In fact, the applicant attached a copy of the Board’s Decision to his supporting affirmation dated 20 April 2022. It is clear that the Board’s Decision should be the subject matter of the Leave Application.
3. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000229_2022_files/the_Board's_Decision.pdf
4. 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”). Accordingly, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
5. In Form 86, the applicant named himself as the putative respondent and his wife “WONG, KITTY WAI SHAN” as the putative interested party.
6. In fact, the Board should be the putative respondent and the Director should be the putative interested party.
7. As aforesaid, the Board’s Decision should be the subject matter of the Leave Application.
8. 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 28 April 2020”.
Late application
9. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
10. However, the applicant filed his Form 86 on 20 April 2022, which was more than 23 months after the Board’s Decision (made on 28 April 2020). The applicant was hence late for more than 20 months in making the Leave Application.
11. This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
12. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.
13. A delay of more than 20 months is very substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given. More importantly, there is no merit in the Leave Application at all as discussed below.
14. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
15. However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.
The applicant’s case
16. 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.
17. In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would be at risk of being harmed or killed by the people of the National Intelligence Agency of Gambia (“NIA”). The applicant claimed that he faced false charges relating to leaking confidential information from the NIA when he was working there. Although he was given bail by the court, the applicant’s mother did not believe that he would receive a fair trial as the government was corrupt. He first left Gambia for Senegal, but believed he could not stay there for long as he might be extradited. He then left Senegal for China, subsequently came to Hong Kong and surrendered to the Immigration Department on 22 January 2015.
Disposal on paper
18. 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
19. 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).
20. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 April 2022.
21. In the said affirmation, the applicant only mentioned that he was married in Hong Kong and had a daughter. The reason why he was appealing was that he did not want to be separated from his family. He also stated that he was appealing to the Immigration Department to reconsider his dependent visa application. His wife and daughter were sick with Covid, and he wanted to support them at the difficult time.
Discussion
22. First of all, the applicant’s wish to remain in Hong Kong with his family cannot be a ground for judicial review.
23. As held by the Court of Final Appeal in Comilang & Ors v the Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong.
24. 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).
25. Thus, despite the fact that the applicant did not advance any valid 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.
26. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 December 2019. The applicant was thus given the chance to present his case to the Board in person.
27. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s non-refoulement claim.
28. The Board found the applicant to be a highly untrustworthy witness and that he was not frank on certain core issues. The Board had laid out its assessment of the credibility of the applicant’s claims in paragraphs 77 to 85 of the Board’s Decision and its findings of fact in paragraphs 86 to 102 of the Board’s Decision. It is not necessary for this court to repeat the same here.
29. In gist, the Board rejected the applicant’s evidence that he was the nephew of Yankuba, the former Director General of NIA, and that the applicant faced false accusations in NIA which resulted in his subsequent detention and maltreatment as described. The Board also found that, in any event, the applicant’s claim must fail because (1) NIA had ceased to operate; (2) the Board failed to see why the new government of Gambia would have adverse interest in the applicant who was allegedly involved in the leakage of the detainees’ information to an online newspaper; (3) the applicant’s fear that he had to answer to charges upon his return did not entitle him to non-refoulement protection, as it was trite that avoidance of due process of law did not entitle a claimant to such protection; (4) the applicant’s allegation that he would face retaliation from the new director of State Intelligence Services (“SIS”) was his own speculation.
30. The Board also found that there was no accepted evidence to suggest that he faced any risk of persecution and concluded that the applicant had no well-founded fear of persecution for a Convention reason.
31. Further, the Board found from country of origin information (“COI”) that the applicant would be able to access state protection in respect of any harm inflicted by the new director of SIS, if any.
32. The Board thus found no evidence to support that the applicant faced any of the risks under the USM which would entitle him to non-refoulement protection in Hong Kong.
33. Although the Board did not make findings 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).
34. As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.
35. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was 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.
36. 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.
37. 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
38. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 27th day of May 2026
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( Gladys 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 the applicant’s 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: 27/05/2026
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: 27/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16266/19/9/22/GA176
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4485/18 (Formerly RBCZ 11238/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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