|
HCAL 3880/2019
[2025] HKCFI 3376
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3880 of 2019
|
BETWEEN
|
| |
Sanogo Abdoulaye |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
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 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 December 2019, 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 23 December 2019 (“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/2019/HCAL003880_2019_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board confirmed the decision of the Director of Immigration (“the Director”) dated 25 October 2018 accordingly.
Amendments
3. In Form 86, the applicant wrongly named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.
4. 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”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Burkina Faso or Senegal, he would be harmed or killed by his stepfather due to disputes over inheritance of his late father’s estate.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and his case was first heard on 27 February 2025. The applicant was present but claimed that he could not understand English. The hearing was then adjourned to a date to be fixed to arrange an interpreter for the applicant.
8. The applicant’s case came up again for another oral hearing on 22 July 2025. An interpreter was available through remote hearing to assist the applicant in his own language.
9. At this second hearing, the applicant told this court that his problem was a family problem because of his late father’s estate. The applicant confirmed that he had told the Board everything about his problem and he had nothing to add. When this court asked him for the grounds of the Leave Application, he just said that he did not know what were written in the Board’s Decision.
Grounds for judicial review
10. 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).
11. However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 December 2019. He simply attached a copy of the Board’s Decision to his supporting affirmation.
12. As aforesaid, the applicant also failed to advance any ground for the intended judicial review at the oral hearings.
Discussion
13. 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).
14. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 29 October 2019 assisted by an interpreter in the applicant’s own language. The applicant was present and was given the chance to present his case to the Board in person. The Board accepted on balance that the applicant had given essentially truthful evidence in relation to his claims.
16. Nevertheless, the Board found that while it was a matter for the applicant to elect to place himself in a position of risk by returning to his home area to press the issue of his inheritance with his stepfather, any such risk could reasonably be avoided by him relocating to another part of Senegal or to Burkina Faso.
17. In assessing the viability for the applicant’s internal relocation, the Board had separately considered the options for the applicant to relocate to other areas in Senegal or to Burkina Faso where he was born and lived as a young child. The Board concluded that the applicant could safely relocate without undue hardship to Burkina Faso where he is a national. The applicant had failed to explain how his stepfather and his people could locate him in this place. The Board also considered that the unavailability of state or police protection in Senegal was a mere speculation of the applicant.
18. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant would not have any real risk of being subjected to severe pain or suffering, torture, deprivation of life or persecution, and in any event it could be avoided by relocating to another part of Senegal or to Burkina Faso. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.
19. The Board was entitled to make the above findings. This court finds nothing wrong in the way the Board reached its decision.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 6th day of August 2025
| |
( Irene LEE )
for Registrar, High Court
|
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 applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 6 August 2025
Applicant’s ref. no:
Nil |
|
Sent/Handed 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: 6 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14256/18/11/99/BFA7
Director of Immigration
Putative interested party’s ref. no.:
ImmD CR T/C 2860/18 (Formerly RBCZ 11300/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|