TOUGMA SOULEYMANE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3810/2019

[2025] HKCFI 1487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3810 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.   The Form 86 is amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 20 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 7 November 2019, which affirmed the Director of Immigration’s decision dated 19 July 2018 refusing the Applicant’s non-refoulement protection claim.  He named the Director of Immigration (the “DOI”) and the TCAB as proposed respondents as well as interested parties.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as an interested party.

3.  The Applicant requested for a hearing but he was absent on the date of the hearing.  As such, I proceeded to deal with this application on paper.

Background

4.  The Applicant is a national of Burkina Faso.  He seeks non-refoulement protection on the basis that if he is returned he will be forced to join the terrorist groups that has allegedly been levying attacks in Burkina Faso.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr 10 HKCFAR 676).

6.  In his affirmation filed in support of the Form 86, the Applicant only stated that he wishes to “reject and review” the TCAB Decision and that the TCAB had “disregarded [his] dangerous situation”.  Apart from the latter complaint, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB [8-33] and after carefully analysing the same, the TCAB came to the conclusion that the Applicant had not established his allegation of real risk [34-45].

8.  The TCAB also corrected identified the applicable legal principles to the four applicable grounds under the USM [7, referring to [1-16] of the Attachment], analysed each ground and came to the conclusion that none was made out [46-54].

9.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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