NDIAYE SAOUROU v. TORTURE CLAIMS APPEAL BOARD

HCAL 190/2022

[2025] HKCFI 2832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 190 OF 2022

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 35-year-old national of Senegal who arrived in Hong Kong on 21 March 2019 as a visitor with permission to remain as such up to 28 March 2019 when he did not depart and instead overstayed, and on 1 April 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Senegal he would be harmed or killed by members of the Movement of Democratic Forces of Casamance (“MFDC”) in their conflicts with the Senegalese government for the independence of the Casamance region from Senegal. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Yeumbeul, Dakar, Senegal until 1996 when he at the age of 7 moved with his family to his parents’ home village in the Casamance region where he finished his education and then assisted in his parents’ farming on their farmland, during which he had witnessed the conflicts between MFDC and the Senegalese government in their fights for independence of the Casamance region which had resulted in heavy casualties on both sides as well as ordinary citizens caught in between the conflicts.

3.  One day in the summer of 2018 while working on his parents’ farmland in the village, the Applicant saw some MFDC people approaching the village and firing their weapons indiscriminately at the villagers, but the Applicant managed to escape unharmed and hid in the jungle, and from there he then fled to Dakar where he could only live on the streets begging for money.

4.  On 20 March 2019 he managed to save enough money to leave the country for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 July 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 2 August 2019 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”).

6.  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 he will face any real and personal risk from the MFDC people upon his return to Senegal due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to specifically target him for harm, that in any event 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 a truce was called in the early 2000s between the Senegal government and MFDC with on-going negotiations for peace between them that it is not accepted that ordinary citizens like the Applicant will face any real risk of harm from the MFDC people, and that reasonable internal relocation alternatives are also available in Senegal with a large population of 15 million people spread across a vast territory of more than 196,000 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 the Casamance region where the conflicts used to be and to move to large cities such as Dakar where he used to reside without incidents and where he will not face any risk of any sort from the MFDC people upon his return to Senegal.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 March 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the MFDC people that caused him to leave his country to come to Hong Kong to seek protection, that there was no evidence of any real intention of the MFDC people to harm or kill him or to specifically target him for their own campaign, and that in any event state or police protection would be available to the Applicant upon his return to Senegal as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district or the Casamance region where the conflicts between the Senegalese government and the MFDC people were confined to that it is not accepted that the Applicant will face any such risk elsewhere in Senegal that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 12 April 2022 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 his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forward 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one confined to the Casamance region and that it is not unreasonable or unsafe for him to relocate to other part of Senegal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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.

13.  Moreover, the Applicant recently on 13 March 2025 filed an affirmation requesting to “cancel” his application as his “dependent visa is out” but without any further details or explanation or documentary evidence in support.

14.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to withdraw his application, I accordingly dismiss his leave application.

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