GOMEZ PASCAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3053/2019

[2025] HKCFI 2427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3053 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 2 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 23 April 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a national of Gambia. He came to Hong Kong as a visitor on 10 January 2014. He overstayed since 13 January 2014 and surrendered to the Immigration Department on 22 January 2014. He lodged a non-refoulement claim by written signification on 12 June 2014. He claimed that, if refouled, he will be harmed or killed by the Alliance for Patriotic Reorientation and Construction (“APRC”) because he was a supporter of the United Democratic Party (“UDP”) which is the opponent of APRC.

5.  According to the applicant, he had joined the protest after the APRC candidate won the election and APRC became the ruling party. He and his 3 friends were then taken by the under-covered police officers to an isolated cell without any facilities where he was detained for 16 months. In March 2013, he escaped from the prison and ran to his friend, Ismaila’s place where he stayed for 8 to 9 months. He was provided by his friend who had arranged his passport to leave Senegal for Hong Kong. His mother in Gambia told him not to return or he would be killed.

6.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 1 September 2016 (“the Director’s Decision”).

The Director’s Decisions

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that it was unbelievable that his friend had accommodated him and even arranged for his passport for Hong Kong, bearing a pair of arrival and departure stamps which are false [15]. The Director had also taken into consideration that he did not raise his non-refoulement claim at the first opportunity, a behaviour which is inconsistent with a person seeking protection. [16]. The Director took the view that his risk of harm if he returns to Gambia is low, considering that the officers did not materialize the death threat when he was in Gambia. [19] Also, state protection will be available if he returns to Gambia, and internal relocation is viable. [22]-[23]

9.  By way of the Director’s Notice of Further Decision (“the Director’s Further Decision”), the Director rejected the applicant’s claim on BOR 2 risk, based upon the above findings. He found that the applicant failed to establish that his right to life will be violated if he returns to Gambia.

10.  The Director’s Decision and the Director’s Further Decision are called “the Director’s Decisions”.

The Board’s Decision

11.  The applicant appealed the Director’s Decisions to the Board. On 16 April 2019, the Board conducted an oral hearing for his appeal. He was represented by a duty lawyer whereas the Director was represented by a government counsel.

12.  Having considered the evidence, the Board agreed with the Director on those issues under paragraph 8. It further found that there was no evidence that he had been harmed or injured as alleged [43]; that he had not reported his predicament to the Gambian authorities [49]; that it did not accept that the men in plain cloth taking him away were acting in an official capacity, or the government official had instigated or acquiesced his arrest [64]; and that there was no evidence that the APRC were still interested in him [60].

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 16 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not state any ground in support of his application in Form 86.

14.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

18.  The applicant has raised no valid ground to challenge the Board’s findings.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.