BOYE ALHAGIE v. TORTURE CLAIMS APPEAL BOARD

HCAL 2045/2020

[2025] HKCFI 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2045 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of The Gambia who arrived in Hong Kong on 4 May 2014 as a visitor with permission to remain as such up to 2 August 2014 when he did not depart and instead overstayed, and on 26 August 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 paternal uncle over their private and personal dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Almadulie, The Gambia. After leaving school he assisted in his family’s business jointly owned by his father and his paternal uncle in his home district.

3.  After his father passed away in 2008, his uncle took full control of the family’s business, and after one occasion in 2013 when a dispute broke out between the Applicant and his uncle over the family business during which his uncle made threats against the Applicant which led to a deterioration of their relationship.

4.  One day in early 2014 some unknown men broke into his home and attacked the Applicant with wooden sticks that he lost consciousness and was subsequently taken by his mother to a local clinic for medical treatments.

5.  Thereafter his mother suspected that it was his uncle who sent those men to attack the Applicant, and advised him to leave the country to save his life, and so on 28 April 2014 the Applicant departed The Gambia for China, and from there he later on 4 May 2014 travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 10 October 2018 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”).

7.  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 by his uncle upon his return to The Gambia due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him over what was essentially some private personal dispute between the 2 of them 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.

8.  On 18 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 15 November 2019 and 8 July 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 October 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of threats from his uncle over their personal dispute but found no reliable evidence of any real intention of his uncle to seriously harm or kill him, and that in any event it was a private dispute between the 2 of them within their family only without any official involvement that state or police protection would be available to the Applicant upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 12 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of the Board’s decision.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.

13.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim 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.

14.  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.

15.  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.

16.  As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I accordingly direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in The Gambia.

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