BALDEH SAIKOU MUSA v. TORTURE CLAIMS APPEAL BOARD

HCAL 260/2021

[2026] HKCFI 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 260 OF 2021

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of The Gambia who arrived in Hong Kong on 18 August 2014 as a visitor with permission to remain as such up to 16 November 2014 when he did not depart and instead overstayed, and on 17 November 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by his maternal uncle over their land dispute in his home district and/or by the Gambian authorities over their investigation of corruption against him. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sankulay Kunda, The Gambia. After leaving school he worked as a driver for the Ministry of Agriculture of the Gambian government, married his wife and raised a family with a daughter in his home district where he also inherited some lands from his mother but which were coveted by his maternal uncle who often demanded that he handed over their title deeds to him so that he could sell them for a profit, and when the Applicant refused, his uncle then made threats against him.

3.  One night in 2013 some unknown men broke into the Applicant’s home to demand him to hand over those title deeds to his uncle, and when he refused, they beat him violently with wooden sticks and other weapons that he suffered cuts and bruises all over his body until his wife screamed for help that the assailants left, whereupon he was taken by his wife to a local hospital for medical treatments.

4.  On another occasion in December 2013 while on his way home, the Applicant was stopped by several unknown men who again demanded him to hand over the title deeds for his uncle, and when he refused they again attacked him with wooden sticks that he collapsed onto the ground and lost consciousness, and that only after those men had left that he managed to get up and returned to his home to seek medical treatment.

5.  One day in April 2014 some men came to his home looking for him, but when his wife told them that he was out working, those men then warned his wife that next time they would kill her and the Applicant if he still refused to hand over the title deeds to his uncle.        

6.  As a result, the Applicant became fearful for his life and sent his wife and daughter to his in-laws, while he in July 2014 departed The Gambia for Senegal, and from there he travelled to China, and on 18 August 2014 he arrived in Hong Kong when he subsequently overstayed and raised his non-refoulement claim for protection.

7.  While released on recognizance pending the determination of his claim, the Applicant in 2017 was informed by his wife in The Gambia that the Gambian authorities had arrested 3 of the staff of the Ministry of Agriculture Department for corruption charges, and that the National Intelligence Agency (“NIA”) had come looking for him as part of their ongoing investigations of corruptions in the Department, and as a result the Applicant became fearful that he would also be arrested for interrogations and tortured by the authorities if refouled to The Gambia that he included such risk in his claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 14 March 2019, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed as asserted upon his return to The Gambia due to the absence of or low intensity and frequency of past ill-treatment from his uncle or the Gambian authorities, that there is no evidence of any real intention of his uncle to seriously harm or kill him over what was essentially a private land dispute between him and  his uncle within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his uncle to locate him, while there is also no reliable or credible evidence of any adverse interest of the Gambian authorities in the Applicant after he has left the country for 3 years other than hearsays and groundless speculations when the authenticity of his submitted documents were called into questions, and that even if the Gambian authorities were indeed investigating him for corruption charges while working in the Ministry of Agriculture Department prior to his departure of the country that the Gambian authorities were doing their lawful duties and were entitled to conduct investigations for any crime or criminal offence which may have been committed by the Applicant, and that to which he would be entitled under the Gambian laws and constitutions to defend any such charges with legal representation in a court of law under a fair trial that it is not accepted that he would face any real risk of being harmed or tortured by the Gambian authorities or the NIA upon his return to The Gambia that in the circumstances he would not be entitled to non-refoulement protection in Hong Kong.

10.  On 27 March 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 February 2021 before the Board but declined to give any oral evidence or answer any questions raised of his claim by the Adjudicator for the Board despite being advised to do so given the many queries about his claim which the Adjudicator found necessary to raise that would affect its credibility, and instead he insisted that the Board should just assess and determine his claim based on the materials and information previously submitted to the Director and available in the hearing bundle before the Board. On 22 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle over some land dispute that caused him to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his decline to give any oral evidence or to answer any questions raised of his claim during his oral hearing before the Board despite being advised by the Adjudicator to do so in view of the various queries which the Board found necessary to raise regarding his such claim as well as his additional claim of fear of being harmed by the Gambian authorities over any investigation of corruption charges against him in the absence of any authentic or genuine documentary evidence in support or of his evidence or answers to questions raised of such claimed risk that it is not accepted that his claims are credible or reliable that it concluded that the Applicant does not face any real risk of proscribed harm under any of the applicable grounds from his uncle or the Gambian authorities or from anyone upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 1 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator of the Appeal Board reached the decision wrongly in assessing his non-refoulement claim

(2)  That the Board’s decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country.     

13.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant who also failed to attend the scheduled hearing of his application without any explanation, I do not find any of them reasonably arguable for his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence or answers to questions raised of his claim from the Applicant despite being advised to do so given the various queries that the Board found necessary to raise but which the Applicant refused without any valid reason, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim from his uncle even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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