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HCAL 3822/2019
[2025] HKCFI 1693
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3822 of 2019
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BETWEEN
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Njie Abdou |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:
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 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated “25-11-2019”. He named “USM” as the proposed respondent and “T.C.A.B” as an interested party.
2. From the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 25 November 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 20 November 2018. I take it that the Applicant is seeking judicial review of the TCAB Decision.
3. I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as putative interested party.
4. The Applicant requested for a hearing of this application and he attended the same.
Background
5. The Applicant is a national of Gambia. He seeks non-refoulement protection on the basis that if he is returned then his brother will harm or kill him for selling his brother’s car and keeping the money. 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
6. 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 (2007) 10 HKCFAR 676).
7. In his affirmation filed in support of the Form 86, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.
8. At the hearing, he informed me at the hearing that he has since been married to a Hong Kong citizen. However, I am not told what his current immigration status is as a result, e.g. whether he is now lawfully present in Hong Kong as a result. He did not indicate that he wished to withdraw the present application.
9. In any event, absence any withdrawal of the present application, the fact that he is now married to a Hong Kong citizen has nothing to do with the considerations applicable to his non-refoulement protection claim or this application.
10. As can be seen from the TCAB Decision, all the available evidence was put before the TCAB [9-38] and after carefully considering the same, the TCAB came to the conclusion that the Applicant failed to substantiate his allegations [39-48].
11. The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying in each instance the correct legal principles to apply, and came to the conclusion that none of them was made out [49-66].
12. As such, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
13. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 13th day of May 2025.
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 13/5/2025
Njie Abdou
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14527/18/11/370/GA161
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4143/18 (formerly RBCZ 10286/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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