CHAM EBRIMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1211/2020

[2025] HKCFI 5531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1211 OF 2020

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”, the name of putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 4 June 2020”.

2.  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 17 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 4 June 2020 without identifying the decision-maker.

2.  In relation to the applicant’s claim for non-refoulement protection, the Torture Claims Appeal Board (“the Board”) made a decision on 4 June 2020[1] (“the Board’s Decision”).  The applicant exhibited a copy of the Board’s Decision in his supporting affirmation dated 17 June 2020.  Thus, it is clear that the decision in respect of which relief is sought in the Leave Application is the Board’s Decision.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001211_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 October 2018, which rejected his non-refoulement claim.

Amendments

4.  The applicant named “USM” as the putative respondent and “T.C.A.B.” as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

5.  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”.

6.  As aforesaid, the Leave Application is in respect of the Board’s Decision, and hence, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision.  

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Gambia, he feared being harmed or killed by his uncle called Pa Cham as he did not repay a loan of 1 million dalasi borrowed from his uncle to start his own welding business.  His uncle was a famous businessman and had close connections with the police.

Oral hearing

9.  The applicant requested for an oral hearing and his case was heard on 4 September 2025.  The applicant was present at the hearing.  He was assisted by a Wolof (the applicant’s language) interpreter through remote hearing.

10.  At the hearing, the applicant said that he had problem with his uncle and the problem had already been presented to the Board for its consideration.  He reiterated a few times that everything he mentioned to the Board was true and not fabricated.  However, he did not say what mistakes the Board had made in the Board’s Decision.

Grounds for judicial review

11.  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).

12.  However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation. 

13.  As aforesaid, the applicant did not advance any ground to challenge the Board’s Decision at the oral hearing either.

Discussion

14.  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).

15.  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.

16.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 11 March 2020 and the applicant was present at the hearing assisted by a Wolof interpreter.  Hence, the applicant did have the opportunity to present his case to the Board in person assisted by an interpreter of his own language. 

17.  The alleged danger that the applicant would face if refouled had already been duly assessed by the Board.  The Board found inconsistencies and omissions between the applicant’s claim form, which he adopted at the hearing, and his evidence presented at the hearing, which affected his overall credibility.  The Board’s finding in relation to these were laid down in paragraphs 57[a] – [c] of the Board’s Decision.  However, the Board did conclude that the applicant’s evidence was reasonably consistent and plausible overall, and found that the applicant had discharged the burden of establishing the basic factual background of his claim.

18.  Nevertheless, after due consideration of the law and the evidence of the applicant, the Board concluded that there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Gambia. 

19.  Briefly put, the Board found that the applicant had never been assaulted or physically harmed by the uncle.  His uncle’s most serious action was to threaten him.  If he had really intended to harm him in any way, he could have done so when he was accompanied by a man and met the applicant.  The experiences of the applicant and his fear of ill-treatment did not reach a minimum level of severity, nor amount to persecution for any of the Convention reasons.  The uncle was not acting in an official capacity.  He was clearly a non-state actor in a private dispute with the applicant.  The Board was not satisfied that the applicant would be arbitrarily deprived of his life upon refoulement either.  The applicant in fact had not tried to seek assistance from the police or authorities before his departure from Gambia.

20.  Moreover, reasonable state protection was available to him if a problem arose with his uncle.

21.  In view of its findings as summarized above, the Board did not find it necessary to make findings in relation to internal relocation.

22.  Although the Board did not make findings as to internal relocation, 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).

23.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

24.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.  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. 

26.  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

27.  For reasons aforesaid, the Leave Application is dismissed.

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