TOURAY ALHAGIE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 251/2024, [2024] HKCA 1010

On appeal from [2024] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 251 OF 2024

(ON APPEAL FROM HCAL NO 1691 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 17 June 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the decision on 25 June 2024.

2.  The applicant is a Gambian national. He entered Hong Kong as a visitor on 13 October 2014 and subsequently overstayed. He surrendered to the Immigration Department on 12 January 2015. He lodged a non-refoulement claim on 23 January 2015 on the basis that he would be arrested and tortured by the Gambian authorities upon his return to Gambia as he would be falsely accused of embezzlement of public funds and be caught or killed because of his political affiliation with the United Democratic Party.

The decision of the Director

3.  By a Notice of Decision dated 14 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the fact that the applicant did not encounter any harassment and physical harm from the Gambian authorities, the Director considered that he was not targeted by the Gambian government and his assertion is speculative. The Director did not accept that the applicant would be accused of embezzlement of public funds and that he would face real and foreseeable risk of being arrested and tortured by the Gambian authorities. The Director further assessed that the availability of state protection and internal relocation alternatives in Gambia further lowers or negates the perceived risk.

The decision of the Board

5.  The applicant appealed against the Director’s decision to the Board. He attended the hearing with his legal representative before the Board on 29 April 2019. The Board has serious doubt on the applicant’s claim as he was allowed to continue working as a cashier to handle money for the Gambia Public Transport Corporation (“GPTC”) after he was accused of embezzlement of public funds and he was not questioned by the police or any other authorities at any time in respect of this accusation. Based on the available evidence, the Board assessed that neither the GPTC, the police, any other authorities nor the government had any interest in the applicant. The Board did not accept that the applicant would be arrested at the airport upon his return to Gambia or that he would face any harm in relation to the false allegation made against him as suggested. The Board concluded that the applicant’s non-refoulement claim was not made out on any of the applicable grounds and confirmed the Director’s decision on 12 June 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 19 June 2019 to seek leave to apply for judicial review against the Board’s decision. He did not put forward any specific grounds for his intended judicial review.

The judge’s decision

7.  The applicant attended a hearing before DHCJ K W Lung on 24 April 2024. The judge found that the applicant has not raised any valid reason to challenge the Board’s decision and there is no reason for the court to interfere with the Board’s finding of facts. As the applicant failed to show any realistic prospect of success in his proposed judicial review, the judge dismissed the leave application on 17 June 2024.

Grounds of appeal

8.  The applicant stated in his notice of appeal filed on 25 June 2024 that the judge did not consider his objection against the Board and did not give him justice.

9.  In his written submissions lodged on 9 September 2024, he reiterated the procedural history of his case and the problems he faced in his home country.

10.  At the hearing of this appeal on 23 October 2024, he informed this court that he would not pursue his appeal and he would just like to go back to his home country.

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of the appeal court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13.  The applicant did not put forward any specific grounds against the Board’s decision in his Form 86 and his oral submissions before the judge in the hearing of his leave application. Under these circumstances, there is no basis for him to complain that the judge did not consider his objection against the Board. The applicant also failed to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  We dismiss this appeal as the applicant has informed us that he would not pursue the appeal. In any event, we dismiss the appeal as it is entirely without merit.