BOYE ABDOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1393/2021

[2026] HKCFI 3045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1393 OF 2021

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 23 September 2021”.

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 6 October 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 23 September 2021 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 23 September 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 October 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, as the applicant annexed a copy of the Board’s Decision to his supporting affirmation dated 6 October 2021. The applicant also confirmed at the oral hearing before this court that the Board’s Decision was 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/2021/HCAL001393_2021_files/the_Board's_Decision.pdf

4.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected his non-refoulement claim.

Amendments

5.  In Form 86, the applicant wrongly named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

6.  As aforesaid, the Board’s Decision should be the subject matter of the Leave Application.

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 23 September 2021”.

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 Senegal, he would be seriously harmed or killed by his uncle. The applicant claimed that he went to Gabon in December 2013, taking with him CFA Franc 10 million from his uncle’s business without his uncle’s permission. His uncle threatened to kill the applicant if he did not repay the money and had reported the applicant’s theft to the police in Senegal.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 14 May 2026.

11.  When this court asked the applicant for the grounds for his intended judicial review, he merely replied that he had a problem back home in Senegal and the Board’s Decision affected him because he could not go home.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 6 October 2021.

14.  What the applicant said at the oral hearing cannot amount to any valid ground for judicial review either.

Discussion

15.  First of all, the applicant’s problem in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

16.  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).

17.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 24 August 2021. The applicant was present and was given the chance to present his case to the Board in person.

19.  The Board had laid out its findings and assessment of the applicant’s case in paragraphs 32 to 49 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

20.  In gist, the Board found the inconsistencies about the nature of the dispute between the applicant and his uncle in the applicant’s four statements given to the Immigration Department weighed against the credibility of the applicant. The applicant admitted to the Board that he had indeed stolen the funds from his uncle. The applicant agreed that he was in effect a fugitive from justice and it was entirely proper that he should face court in Senegal and be punished for committing a crime. However, the applicant said that he was in fear of his uncle because he would harm him before he had a chance to be taken to court.

21.  In this regard, the Board found that given the uncle had made a complaint to the police against the applicant for stealing the funds, the Board found it more likely than not that he would be arrested on return to Senegal, and it would not seem to be any opportunity for the uncle to harm the applicant.

22.  More importantly, the Board found numerous inconsistencies, implausibilities and vagueness in the applicant’s evidence with regards to how he knew about the funds in the drawer of the shop, why he stole the funds, when he talked to his uncle when he was in Gabon, why he did not do more to protect his parents, etc.

23.  For reasons of the inconsistent, implausible and vague evidence of the applicant and his non-persuasive explanations, the Board found the applicant not to be a credible witness. The Board rejected that (1) the applicant was gifted, had borrowed or stolen any money from his uncle or any other family member; (2) the applicant went to Gabon in fear of his uncle or any other family member; (3) the scars of the applicant were incurred during the attack in Gabon; (4) the uncle made any complaint to the police against the applicant; (5) the applicant would be arrested on return to Senegal; (6) the applicant faced prosecution or the risk of imprisonment in Senegal; (7) the uncle had threatened the applicant or any member of the applicant’s family; (8) the uncle arranged the attack on the applicant in Gabon; and (9) the applicant came to Hong Kong in fear of harm of the uncle and/or the Senegal authorities.

24.  The Board concluded that the applicant had fabricated the claims so as to create a basis to apply for non-refoulement protection. The Board did not consider that the applicant faced a real risk of the proscribed forms of harm from his uncle or the Senegal authorities if he was refouled to Senegal, and hence found the applicant failed to establish a case for non-refoulement protection.

25.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

26.  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).

27.  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.

28.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

29.  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.

30.  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

31.  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