DIALLO ALPHA MAMADOU v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:

1.  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 14 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 3 May 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000995_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Thus, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 September 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim, and confirmed the same.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Guinea, he feared he would be harmed and the government of his country could not protect him.  Specifically, he was afraid that the Guinean government would kill him because he protested against the military government.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 26 March 2026.

6.  When this court asked the applicant for the grounds of his intended judicial review, the applicant at first said that he was asked to produce a membership card to prove that he belonged to a political party but he had lost it, and he referred to paragraph 31 of the Director’s Decision.  When this court pointed out to him that the Leave Application was in respect of the Board’s Decision, not the Director’s Decision, he then said that he did not know about the Board’s Decision, which could not be true, as the applicant had annexed a copy of the Board’s Decision to his supporting affirmation dated 14 July 2021. 

7.  After the Board’s Decision was shown and translated to him by the interpreter, the applicant only said that he was telling the truth and did not try to lie and that he was ready to accept any decision given to him.

Grounds for judicial review

8.  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). 

9.  The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 14 July 2021. 

10.  As mentioned, the applicant did not advance any ground for his intended judicial review at the oral hearing before this court either. 

Discussion

11.  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). 

12.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 

13.  In assessing the applicant’s appeal, the Board held an oral hearing on 28 August 2019 and the applicant was present.  Thus, the applicant was given the chance to present his case to the Board in person. 

14.  As can be seen from the Board’s Decision, the Board questioned the applicant extensively during the Board’s hearing and analyzed all his claims with due care.  The Board had given full and detailed reasoning in paragraphs 40 to 80 of the Board’s Decision as to why the Board found the applicant not a witness of truth and the Board was not satisfied that the applicant had told the Board the truth in relation to critical elements of his claims.

15.  In gist, the Board rejected all the applicant’s claims as follows:-

(1)   The applicant was politically active and involved with the Union of Democratic forces of Guinea (“UFDG”);

(2)   The injury to the applicant’s left leg was sustained in the circumstances claimed by the applicant;

(3)   The applicant joined the UFDG in 1990 or any time after that;

(4)   The applicant was a member of the UFDG or attended rallies, meeting or protests as he had claimed;

(5)   The applicant participated in or was injured at the “November 8” Bridge protest;

(6)   The applicant was in hiding from soldiers, the army, the military or any other persons or authorities prior to leaving Guinea;

(7)   Anyone in Guinea had or had any adverse interest in the applicant;

(8)   The applicant would be politically active on his return to Guinea;

(9)   There was a real risk anyone would harm the applicant on his return to Guinea; and

(10)   Anyone in Guinea would harm the applicant for any of the reasons he had claimed, or for any other reason, if the applicant returned to Guinea.

16.  The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

17.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the Board had found that the applicant was not at risk of harm, it is not necessary for the Board to consider the availability of state protection.

18.  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).

19.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

20.  The assessment of evidence and risk of harm was primarily within the sole ambit of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.  

21.  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.  

22.  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

23.  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