KABBA CHUNDI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1087/2021

[2026] HKCFI 1946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1087 OF 2021

Application for leave to apply for judicial review

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

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.   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 30 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 22 October 2020.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001087_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish his case for non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 October 2018, which rejected the applicant’s non-refoulement claim, and affirmed the same.

Amendments

3.  In Form 86, the applicant named “Torture CLaim APPeal Boad Non Refoulement CLaim Pettition office” as the putative respondent, and “Torture Claim APPeal Board” and “The Director of Immigration” as the putative interested parties.

4.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 30 July 2021, which was more than 9 months after the Board’s Decision (made on 22 October 2020).  The applicant was hence late for more than 6 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

10.  In a letter dated 30 July 2021 with the heading “Reason for Late filling [sic]”, which was annexed to the applicant’s supporting affirmation dated 30 July 2021, the applicant admitted that the Leave Application was filed late and applied for an extension of time to file the Leave Application.

11.  The reason for delay as stated in the said letter was that the applicant did not get the letter from the Board because he was not staying in his address given to the Immigration Department but was staying with friend in his former address.  The Immigration officer informed him about the Board’s Decision on 20 May 2021.

12.  When this court asked the applicant at the oral hearing on 10 March 2026 to explain his reason that was contained in the said letter, the applicant replied that the reason was stated in his letter and he needed to bring his wife to hospital every day.

13.  A delay of more than 6 months is very substantial, and the explanations provided by the applicant are unsatisfactory.  He should have informed the Director and the Board of his new address if he had moved, or he should have gone back to his reported address to check for mails from time to time.  The need to accompany his wife to hospital is not an excuse either, as he could still file the Leave Application after taking his wife to hospital during all these months.

14.  More importantly, there is no merits in the intended judicial review as discussed below.

15.  Thus, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The applicant’s application for extension of time to file the Leave Application is refused.  The Leave Application can be dismissed on the ground of being made out of time alone.

16.  However, for the sake of completeness, this court will still consider the merits of the Leave Application.

The applicant’s case

17.  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.

18.  In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he would be harmed by a lady called Ms Yatar in Madagascar with whom he did gemstone business between early 2000 to 2003.  He was not able to repay Ms Yatar for the price of 2 containers of gemstones that were sent from Madagascar to him on credit in 2003 due to SARS in Hong Kong.  The applicant alleged that Ms Yatar threatened to kill him if he should return to Madagascar.  He stated that Ms Yatar could locate him anywhere in the African continent if he were to return to Africa.

Oral hearing

19.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 10 March 2026.

20.  When this court asked the applicant to give the grounds for his intended judicial review, he confirmed that he would rely on what were written in his letter dated 30 July 2021 with the heading “Reason why I can’t go back to Africa”, which was attached to his supporting affirmation.  He only added that he did not want to go back as he did not have a job and he needed to take his wife to hospital in Hong Kong every day.

Grounds for judicial review

21.  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).

22.  The applicant did not identify any grounds for the intended judicial review in Form 86.  In the said letter dated 30 July 2021 with the heading “Reason why I can’t go back to Africa”, the applicant stated that he was attacked by some Pakistani men in Chung King Mansion, Tsim Sha Tsui.  His leg was broken and he was hospitalized.  He provided his hospital case number as proof and claimed that he owed some money to the hospital.

23.  The applicant also stated in the said letter the background facts concerning his debts in Africa and why he could not return to Africa.  The applicant believed that his inability to repay the loan was the cause of the attack and beating he suffered in Hong Kong.  He reported the attack to the police and provided the police report number.

24.  Finally, the applicant requested this court to allow him to stay in Hong Kong to take care of his wife, a Hong Kong resident.

25.  As aforesaid, the applicant told this court at the oral hearing that he would rely on the grounds stated in the said letter, and only added that he wanted to stay in Hong Kong to take care of his Hong Kong wife.

Discussion

26.  First of all, the applicant’s danger upon refoulement and even his alleged attack which led to his hospitalization in Hong Kong had been duly assessed by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

27.  The applicant’s assertion at the oral hearing before this court that he wanted to stay in Hong Kong to take care of his wife is not a valid ground for non-refoulement protection and is not a ground to challenge the Board’s Decision.  In any event, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10).

28.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

29.  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).

30.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

31.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 4 July 2019.  However, the applicant was absent at the hearing. Upon the applicant’s application, the Board arranged another hearing on 6 November 2021.  The applicant was present that time and was thus given the opportunity to present his case to the Board in person.

32.  As can be seen from the Board’s Decision, the Board found that the applicant was not a wholly reliable witness and his evidence was not reliable.

33.  Even if the applicant’s evidence were accepted, the Board found that the evidence did not show any involvement of any government officials in the applicant’s dispute with Ms Yatar.  The Board found that the applicant’s claim was based on his purchase of gemstones from Ms Yatar and he could not repay the price because of SARS in Hong Kong.  The applicant’s dispute with Ms Yatar was only due to a business debt.  The applicant had not suffered any actual bodily injury, or any physical or mental suffering that had reached a minimum level of severity.

34.  Moreover, the Board found from the applicant’s own evidence that Ms Yatar only threatened him once over phone in 2003 and he had no contact with her since.  The applicant just described Ms Yatar as a businesswoman and a Christian.  There was no basis for the applicant’s assertion that Ms Yatar could locate him anywhere in the African continent upon his return to Gambia or to the African continent.  The Board also found that the applicant’s claim that the partner of Ms Yatar who had retired to Gambia would likely inform Ms Yatar that the applicant was in Gambia if he were returned to the country was a bare assertion without credible evidence in support.  The applicant’s claim was not based on a well-founded fear of being persecuted for any Convention reasons.

35.  The Board had examined the immigration history of the applicant and laid out its full reasons in paragraphs 44 to 46 of the Board’s Decision for its finding that the applicant’s claims that he was in fear of harm from Ms Yatar could not be the real cause for his application for non-refoulement protection.

36.  As to state protection, the Board had duly assessed that applicant’s assertion that the Gambian police or local authorities could not help him as they were corrupt.  The Board found from extensive, fully-referenced country of origin information (“COI”) that although there was corruption in the police force and government officials in Gambia, the Gambian government had made efforts to improve the situation in recent years.  The Gambian constitution and other laws and policies protected human rights and freedoms and, in practice, the government generally enforced these protections.  The Board found that adequate state protection would be given to the applicant if required.

37.  The Board thus found that the applicant was not at risk of harm from Ms Yatar and did not face any of the proscribed forms of harm if he were refouled to Gambia.

38.  Although the Board did not make findings on the viability of internal relocation for the applicant, 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).

39.  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.

40.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

41.  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. 

42.  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

43.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for devoid of merits.

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