Be v. Director of Immigration and Another

HCAL 167/2017

[2018] HKCFI 2295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 167 OF 2017

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the counsels in open Court;

Order by the Honourable Mr. Justice Yau:-

1.  Leave to the Applicant to amend the Notice of Application for Leave to apply for Judicial Review (“Form 86”) in the manner as shown in the draft amended Form 86 dated 6 June 2018 is granted;

2.  Leave to the Applicant to file further evidence by way of Affirmation of the Applicant dated 6 June 2018 in support of the Application for Leave to apply for Judicial Review is granted;

3.  Leave to the Applicant to apply for Judicial Review in accordance with the draft amended Form 86 is granted;

4.  There shall be a hearing of the Judicial Review on a date to be fixed, in consultation with counsel’s diary, with half a day reserved;

5.  The Respondents shall attend the Judicial Review hearing;

6.  Leave to the Respondents to file and serve affirmation for the Judicial Review within 28 days from today;

7.  Leave to the Applicant to file and serve their affirmation in reply (if any) 28 days thereafter;

8.  The Applicant shall file his skeleton argument 14 days before the hearing;

9.  The Applicant be granted anonymity throughout these judicial review proceedings on the following terms, unless and until a court otherwise orders:

(a)  the Applicant be referred to as “BE”;

(b)  no report of these proceedings shall directly or indirectly identify the Applicants or any member of his family;

(c)  this order applies to all parties including interested parties and to the public including the media and any failure to comply with this order could lead to contempt of court;

(d)  unless with the leave of the court, access to the documents in connection with these proceedings be restricted to parties to the intended proceedings and their legal representatives;

10.  The Respondents shall file and serve their skeleton argument 7 days before the hearing;

11.  Costs be reserved;

12.  Liberty to apply.

Observations for the Applicant: (Order by the Honourable Mr. Justice Yau)

1.The Applicant is a Gambian male born on 24 May 1985 and is single.  He ran a furniture shop in Gambia named Manjai Door Shop which sold doors and furniture.

2.The Applicant was heterosexual when he was young and became homosexual in 2013 after he had met a man named Lamin.  They attended parties in hotels, restaurants, bars and night clubs together and they conducted their homosexual affairs in hotels.  They had never been arrested by the police or National Intelligence Agency (“NIA”) of Gambia.   

3.On 21 July 2014, the Applicant arrived in China for the purpose of buying stock for his furniture shop.  He came to Hong Kong on 28 July 2014 and was permitted to stay as a visitor until 26 October 2014.  When he was about to return to Gambia he learnt from his mother over the telephone that the NIA was cracking down on homosexuals in Gambia and he was on the wanted list, as his name had been given to the authorities by persons under torture.  He was told not to return to Gambia.  The Applicant stayed in Hong Kong and did not leave although his limit of stay as a visitor expired on 26 October 2014.  He was arrested on 5 November 2014 for overstaying.

4.The Applicant lodged a non-refoulement claim by way of a written representation dated 6 November 2014 and he is claiming that if refouled to Gambia he would be at risk of harm from the NIA and might even be killed because he is a homosexual.  He was released on recognizance after filing the claim. 

5.The Applicant was arrested on 23 April 2015 for the offence of trafficking in dangerous drugs of herbal cannabis, cannabis resin, ecstasy and methamphetamine hydrochloride commonly called ice.  He was convicted of the offence and was sentenced to 24 months imprisonment on 28 July 2015.  His appeals against the conviction and sentence were dismissed by the Court of First Instance on 27 January 2016.

6.His non-refoulement claim was considered under the Unified Screening Mechanism and was rejected by the Director of Immigration (“the Director”) on 11 November 2016.  He appealed against the decision by a notice dated 24 November 2016 and the TCAB dismissed his appeal on 23 February 2017 after a hearing in which the Applicant was represented by the duty lawyer.

7.In his application for leave to apply for judicial review the Applicant is represented by Ms Denise Souza of counsel instructed by Daly, Ho and Associates on assignment of the Director of Legal Aid.  The grounds of application are that the TCAB and the Director:

(a)   erred in law in failing to apply the proper legal test in assessing the persecution risks of the Applicant in finding that the Applicant might continue to live as discreetly as he did before in hiding his sexual orientation from the authorities;

(b)   failing to properly assess the country conditions in Gambia that the draconian law against homosexual is still in force despite assertion by the present president of the country that homosexuality is not an issue;

(c)   erred in finding that the Applicant can receive state protection from the NIA when the Applicant’s fear of persecution or serious harm is at the hands of the state.    

Conclusion

8.The TCAB and the Director placed much weight on the assertion by the present Gambian president, Mr Adama Barrow, that homosexuality is not an issue.  The law against homosexuality, including that enacted in October 2014 which imposes sentences of up to life imprisonment has, however, still not yet been repealed and there is no indication it will be done in the near future, despite the president having been in office and made promises to remove repressive laws for almost 2 years.  President Barrow seems to be busy in dealing with the economic issues of the country which, according to country of origin information, he has accorded a higher priority.

9.Despite the confidence the TCAB seemingly had in President Barrow, it stated in its findings, as set out in the arguments of the Applicant, that the Applicant might continue to live as discreetly as he had done before in hiding his sexual orientation from the authorities.  The TCAB is obviously still skeptical about whether the Applicant can live the life of his choice without the fear of being persecuted or prosecuted on his return to Gambia.

10.The Court is of the view that there are reasonably arguable grounds to support the intended judicial review. Leave to apply for judicial review is granted.

Dated the 11^th day of October 2018.

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