G v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 534/2018

[2019] HKCFI 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 534 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1. leave be granted to the Applicant to judicially review the decision of the Torture Claims Appeal Board (“the Board”) made on 27 March 2018 on the following ground:

failure to take into account and/or investigate with the Applicant at the hearing the visible scars on his leg said to have resulted from torture and/or ill-treatment by the NIA, and the decision was therefore unlawful, irrational and/or procedurally unfair;

2. applicant to issue and serve his originating summons within 14 days from his receipt of the decision hereof;

3. applicant to serve the relevant documents on the Board as respondent and the Director of Immigration as interested party in accordance with Order 53 rule 5 of the High Court Ordinance, Cap. 4A; and

4. costs be in the cause.

Observations for the Applicant:

1.The applicant is a 25-year-old national of the West African country The Gambia who arrived in Hong Kong on 2 September 2014 with permission to remain as a visitor up to 1 December 2014 when he did not depart and instead overstayed until 2 December 2014 when he surrendered to the Immigration Department, and subsequently raised a non- refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by officers of the National Intelligence Agency (“NIA”) for participating in reforms and by his uncle for converting his religion from Islam to Christianity.  He was subsequently released on recognizance pending the determination of his claim.

Background

2.The applicant was born and raised in Village Pakaungogu in The Gambia.  While he was in the secondary school he converted his religion to Christianity due to the influence of his school teacher which led to conflicts with his uncle who was a Muslim and was displeased about his conversion to Christianity.

3.But soon the applicant left home for the University of The Gambia to study law and joined its Youth Activism seeking various reforms in education.

4.One day in July 2013 while he together with 17 fellow students of Youth Activism gathered in the university hall discussing education reforms with a professor, police arrived to claim that the gathering was illegal and arrested him and his fellow students and brought them to the Kanifing Police Station.

5.After being detained in Kanifing Police Station for three days, the students were transferred to NIA for interrogation, during which the applicant was tortured with waterboarding and with fire droplets onto his legs for more than three months until October 2013 when he was released on bail and returned to his home village for medical treatments to his legs which have since been left with visible scars in the lower part of the left leg.

6.Upon his returning home his dispute with his uncle over his conversion to Christianity resumed, and in 2014 it escalated to an incident when he was attacked by his uncle resulted in a serious injury to his right eye that required surgery and hospitalization for three weeks, but despite the operation his right eye still suffered various problems including severe glaucoma, blurry vision, high eye pressure, eye angle recession and cornea and dilation complications.

7.After his discharge from the hospital the applicant reported the matter to the police, but after a statement was taken from him, no follow-up investigation took place and the applicant suspected that the police were under the influence of his uncle who was a wealthy and prominent man in the village.

8.As he felt that it was no longer safe to remain in the village, he therefore left in July 2014 to stay at another relative’s home in Yundum Barracks, but when he heard that his uncle was looking for him everywhere and had warned his relatives not to help him as he was no longer a Muslim, the applicant decided to leave The Gambia, which he did in August 2014 for Senegal, and then to China and later to Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 16 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.Meanwhile being released on recognizance, the applicant was arrested by police in August 2016 for drug trafficking and was subsequently convicted and sentenced to prison for 26 months when his claim was being processed by the Immigration Department. 

The Director’s Decision     

10.By a Notice of Decision dated 24 August 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

11.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from NIA and/or his uncle to the applicant upon his return to The Gambia as low as there is no reliable evidence that NIA still has any adverse interest in him after his release in 2013 and the fact that he was able to leave the country in 2014 without difficulty, that The Gambia now has a new government which has promised reforms to improve its administration including the NIA, while his dispute with his uncle was a private family matter without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia that it would not be unduly harsh for the applicant as an able-bodied and highly educated young man to move to other part of The Gambia away from his home village in large cities such as Brikama or Bakau where it would be difficult if not impossible for his perceived enemies to locate him.

Appeal to TCAB

12.On 1 September 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 16 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board did not accept the applicant’s claim about his religion conversion from Islam to Christianity as he was born to Christian parents and together with his sister attended a Christian school and hence it was not accepted that he was ever a Muslim, and that in fact he was all along a Christian and hence there was never any religion conversion from Islam that led to conflicts with his uncle, whilst the absence of any report of his alleged incident of mass arrest of students by the NIA undermined his claim to have been tortured by NIA, and that in any event the political situation and human rights climate in The Gambia have since his departure greatly improved by the election of a new president and that the new government has undertaken significant reforms to the administrations including the NIA that it was not accepted that the applicant would still have any adverse political profile upon his return to The Gambia, and concluded that he has failed to establish a well-founded fear of any risks under any of the applicable grounds.

Leave to apply for judicial review

14.On 3 April 2018 the applicant filed his Form 86, and amended on 18 March 2019, for leave to apply for judicial review of the Board’s decision, and in it he put forward the following amended grounds for his intended challenge:

(1)  failure to take into account and/or investigate with the applicant at the hearing the visible scars on his leg said to have resulted from torture and/or ill-treatment by the NIA, and the decision was therefore unlawful, irrational and/or procedurally unfair;

(2)  failure to direct or misdirected itself in law on the proper approach to assessing the applicant’s credibility and/or was irrational in conducting that the applicant fabricated his conversion from Islam to Christianity on the sole basis that his parents were Christian, as well as using the alleged fabrication of his conversion to undermine his claim in relation to torture and detention by the NIA;

(3)  failure to take into account and/or failed to investigate relevant COI materials indicating that Christian converts, as opposed to Christians, did face a certain degree of hostility within The Gambia, and the decision was therefore unlawful, irrational and/or procedurally unfair;

(4)  erred in law in its approach to and/or was irrational in its assessment of the change of circumstances in The Gambia following the election of its new president; and

(5)  procedurally unfair in refusing to afford the applicant more time to obtain material evidence to corroborate his claim and/or took into account irrelevant considerations and/or was irrational in considering that his failure to obtain documents was because his claims were not truthful.

Ground (1):  failure to consider the existence of scars  

15.Mr Geoffrey Yeung appearing for the applicant submits that the existence of any physical evidence of alleged past torture or ill-treatment such as scars must be relevant or important considerations in determining a non-refoulement claim arising from a real risk of torture or ill-treatment, as it was recognized by UNHCR in the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2004) at §161:

“ To the extent that physical evidence of torture exists, it provides important confirmatory evidence that a person has been tortured. However, the absence of such physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars.”

16.Mr Yeung argues that as the applicant had clearly stated in his previous materials provided to the Director that NIA had tortured him by inter alia fire droplets onto his legs leaving visible scars on his lower left leg, as he so stated in his NCF, and also in his answer submitted to questions raised by the Director:

“ Q8:  Did you sustain any injuries after being interrogated at the NIA? [If yes, (i) What kind of injuries did you suffer? (ii) Did you receive any medical treatment? (iii) How long did it take for your injuries to recover?]

A8:  (i) Wounds on my right leg and scars on my left lower leg.  (ii) I received traditional treatment.  (iii) It took about 3 to 4 months.  The scars are still visible.”

17.Further, Mr Yeung submits, the alleged torture and scars were mentioned in the Director’s decision at §18 when he stated:

“ You also sustained wounds on your right leg and scars on your left lower leg by droplets of fire from a plastic bag”.

18.However, Mr Yeung submits, these scars were never mentioned in the Board’s decision at all, and that it did not even raise the issue of the scars with the applicant at the oral hearing, and never asked itself how the applicant’s scars came into existence, whether it arose from past torture or ill-treatment, but rather just focused on the incredibility of the evidence regarding the applicant’s detention by the NIA [61 – 62].

19.Mr Yeung submits that the Board therefore did not challenge the applicant’s evidence that the scars resulted from past torture, or suggest whether at the hearing or in its decision that they were self-inflicted or otherwise caused in a way inconsistent with his claim, and had indeed accepted that there were COI materials indicating that NIA routinely conducted torture including burning [59].

20.Mr Yeung relies on the case of RR (Challenging Evidence) (Sri Lanka) [2010] UKUT 000274 (IAC) in which the applicant from Sri Lanka claimed to have been tortured by the authorities for being suspected to be a member of the terrorist organization Tamil Tigers or LTTE resulting in head injuries with scars, of which the Upper Tribunal said this about assessment of such evidence:

“ 154.  Once it is apparent that the appellant is scarred we have to ask ourselves how he came to be scarred. He says that he was tortured. The other possibilities are that the scars were the result of some innocent but unimaginable mechanism, or that they are the result of torture in very different circumstances to those advanced by the appellant. One might speculate that they were self-inflicted, presumably to promote the appellant’s case. None of these explanations is beyond belief but they do not appear to us to be likely.

155.  Ms Kiss was not able in her cross-examination to lay a foundation to support any suggestion that the scars were self-inflicted or otherwise the result of bad faith on the part of the appellant. As we have already mentioned it was not put to the appellant that the scars were self inflicted or otherwise caused in a way inconsistent with the appellant’s case. That implies no criticism of Ms Kiss. On the contrary, it seems to us to reflect the reality of the case.

156.  In the absence of any evidence tending to suggest a different mechanism we do not see how we can fairly reject the appellant’s evidence about their cause when no alternative mechanism was put to him and he was not cross-examined on the basis that he was making up his entire case.”

21.It seems clear to me that in the Board’s decision the adjudicator did refer to the applicant’s claim of being tortured by NIA including by waterboarding and fire droplets onto his right leg as stated in his NCF to the Director [14], but when she came to assess the evidence and credibility of his such claim, and while she did also acknowledge his claim of being so tortured and that such torture methods were according to COI routinely used by NIA, as submitted by Mr Yeung, she rejected his torture claim without making any consideration or assessment of his scars allegedly caused by such torture when she made her following adverse findings on his credibility:

“ 61.  Whilst the absence of any reporting of the incident claimed by the Appellant by no means definitive, I consider that other aspects of the Appellant’s evidence raise further doubts in relation to the truthfulness of his claims. In this respect, I consider that the inconsistencies between the Appellant’s written claims to ImmD and the Board during the hearing regarding the length of the detention to raise considerable concerns that his claims are fabricated. As indicated above, although the Appellant stated in his written claims that he had been held and tortured for three months and three weeks, his evidence during the hearing was vague, with him referring to a detention of ‘over a week’. When this issue was discussed, the Appellant indicated that over a week could be three months and three days, before stating that due to the length of time and trauma he experienced he could not recall the exact period of time.

62.  I have accepted and had regard to the difficulties for the Appellant in making statements whilst detained in Hong Kong. However, the Appellant has claimed that during his detention in Gambia he was severely tortured, using the methods he has described above. I accept and acknowledge the reports provided by the Appellant and that such torture methods were routinely used by the NIA. Although these reports are consistent with other COI before the Board, I do not accept that the Appellant was detained and tortured by the police and NIA. I do not accept that the Appellant would be unable to recall, with at least some degree of approximation, the length of time for which he was detained. I consider that had the appellant been held by the NIA and tortured that he would be able to recall with at least some degree of certainty the length of time that he was detained.

63.  Furthermore, although I was prepared to give the Appellant the benefit of the doubt in relation to the dates and timing of his detention and subsequent departure from Gambia, as is set out in his NCF, his written responses to questions from ImmD also contain what he now claims are mistakes in relation to dates and timing of incidents. Thus, although the Appellant’s claimed during the hearing that the protests and his subsequent detention occurred some time in 2014, and he did not report for bail and almost immediately after his release he fled Gambia, his written claims were that following his detention in 2013 he stayed at home between October 2013 and mid-2014 and subsequently fled from Gambia. I consider, even allowing for difficulties in making statements under adverse conditions, that the problematic nature of dates and timing regarding the Appellant’s departure from Gambia raises further concerns that his claims are fabricated.

64.  As indicated above, I have found that the Appellant’s credibility has been undermined to an extent by his willingness to fabricate evidence regarding his conversion to Christianity.  I have also found that the absence of reporting in relation to the detention and torture of a large group of students raises some further concerns regarding the truthfulness of his claims. Having regard to these factors, as well as the inconsistencies in relation to the Appellant’s evidence regarding the length of his arrest and the timing and dates of his departure from Gambia, I am drawn to the conclusion that he has fabricated his claims in relation to the detention and torture ….”

22.It is therefore clear from the above that in assessing the applicant’s credibility as to his torture claim, the adjudicator never took into consideration of the presence of the scars, and I agree with Mr Yeung’s submission that it is one thing for the adjudicator to consider that the scars may not be conclusive of any claim of past torture, it is another to completely omit or ignore them from her consideration, and that whether or not the applicant might have given inconsistent evidence as to the dates or timing of his detention, the fact that the central issue of his claim of being tortured during the detention by fire droplets onto his leg resulting in scars should have been investigated and assessed by the Board, as the Court cannot now speculate how the Board would have decided if it had indeed done so, or what weight it would have given to them in its consideration of all the other evidence, including the general evidence.

23.Similarly, while the Board may be entitled to find that the applicant’s credibility had been undermined by its adverse finding on his other claim of conversion to Christianity, that there is undisputed objective evidence from COI about situations then in The Gambia in particular the torture methods routinely used by NIA should go a long way to making good the shortcomings in the applicant’s own evidence that the presence of the scars would assume such significance or importance in his claim that it should not have been ignored, as Sir John Dyson SCJ of the UK Supreme Court said in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] 2 All ER 65:

“ [32]  Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant’s dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] 2 All ER 1008, [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. Lord Lane CJ said ([1981] 2 All ER 1008 at 1011, [1981] QB 720 at 724):

‘To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must refer to a material issue. Thirdly the motive for the lie must be a realization of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behavior from their family …’

[33]  Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA’s appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

24.Accordingly, and for these reasons I agree with Mr Yeung that notwithstanding its concerns over the applicant’s credibility as to other matters regarding his torture claim, or its adverse finding as to his other claim of conversion to Christianity, it was incumbent of the Board to make proper investigation and assessment of the existence of scars on the applicant’s leg, and that it is therefore reasonably arguable that in failing to do so the Board acted irrationally or Wednesbury unreasonably in its assessment of the applicant’s claim.

Grounds (2) and (3):  error in assessing the applicant’s religious conversion and failure to consider relevant COI on Christian converts

25.These two grounds can be conveniently considered together, as they relate to the applicant’s alleged religious conversion and the resultant persecutions which he claims to have faced but which the Board found not supported by COI.

26.For Ground (2) Mr Yeung submits that the Board was wrong in rejecting the applicant’s claim of having converted his religion from Islam to Christianity on the sole basis that it was implausible for “a child who was born of parents who were both Christians would have been born and raised as a Muslim” without taking into account or giving weight to other matters such as that the applicant could answer questions about the Muslim faith or that he could explain how he encountered the Christian faith, thereby failing to direct or had misdirected itself in law as to the proper approach to assessing credibility. 

27.On this Mr Yeung submits that the Board in assessing the applicant’s credibility as to his such claim had failed to direct itself to the principles set out in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 when Neuberger LJ (as his then was) stated:

“ 28. … in many asylum cases, some, even most, of the appellant’s story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29.  Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. …

30.  Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala v Secretary of State [2005] CSOH 73.  At paragraph 22, he pointed out that it was ‘not proper to reject an applicant’s account merely on the basis that it is not credible or not plausible. To say that an applicant’s account is not credible is to state a conclusion’ (emphasis added).  At paragraph 24, he said that rejection of a story on grounds of implausibility must be done ‘on reasonably drawn inferences and not simply on conjecture or speculation’.  He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely ‘on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible.’  However, he accepted that ‘there will be cases where actions which may appear implausible if judged by … Scottish standards, might be plausible when considered within the context of the applicant’s social and cultural background’.”       

28.Mr Yeung accepts that it is not the applicant’s submission that the Board cannot have regard to the inherent possibilities of a claimant’s account, but that in rejecting the account on the sole basis of being implausible, it must bore in mind that what may appear to be implausible in Hong Kong might be plausible in a different socio-cultural context, especially in a small country such as The Gambia with a small population of which 90% is Muslim and which has a culture that could be vastly different from that in Hong Kong, and hence it was improper for the adjudicator to speculate and presume that, in the socio-cultural conditions of The Gambia, it must be implausible for a child to be raised as a Muslim even if he was born of parents who were both Christians.

29.Mr Yeung further submits that whether it is plausible that the applicant was raised as a Muslim must also depend not only on socio-cultural factors but also on case-specific factors, such as how religious his parents were or how much of the community around the applicant was Muslim, but none of these matters were explored or taken into account by the Board.

30.In her consideration of the applicant’s claim of religious conversion from Islam to Christianity and its resultant risk of persecution, the adjudicator stated in the Board’s decision as follows:

“ 55.  The Appellant has claimed that he converted to Christianity at the age of 18 years, due to the influence of a priest at his school. He has claimed that this resulted in an assault from his uncle causing an injury to his eye, requiring hospitalization and continuing treatment. I accept the medical reports that the Appellant provided and that he has in the past sustained a serious injury to his eye. However, as discussed during the hearing, whilst I accept the injury itself, the manner in which it occurred is questionable. Whilst I also acknowledge that the COI referred to above indicates that some 90 per cent of the population is Muslim, the majority of the remainder of the population is Christian, mainly Catholic. Having considered all of the evidence I do not accept that the Appellant at any time converted from Islam to Christianity, and I consider that he was instead at all times a Christian.

56.  I accept that Muslims can certainly attend Christian schools and may do so due to the belief that they will receive a superior education. However, in the Appellant’s circumstances I consider that the Appellant’s and his sister’s attendance at Christian schools was because both he and his sister were born in a Christian family. As discussed during the hearing, the Appellant stated on the application form that his parents’ religion was Christian. When this issue was discussed during the hearing, the Appellant became somewhat confused, but acknowledged that his parents’ religion was Christian, claiming that because Gambia is predominantly Muslim that his religion at birth was Muslim. I do not accept these claims. The COI set out above indicates that Gambia was, apart from a brief period in which Jammeh declared it to be an Islamic republic, a secular state. The COI before the Board does not indicate that Christians were discriminated or oppressed under the Jammeh regime and in fact indicates the opposite. I do not accept that a child who was born of parents who were both Christian would have been born as a Muslim. I do not accept any of the Appellant’s claims in relation to the conversion and consider that his willingness to make fabricated claims to ImmD and the Board in relation to the matters seriously undermines his overall credibility.

57.  Given that I do not accept that the Appellant converted to Christianity at the age of 18 years, or indeed at any time, I do not accept that his Uncle Musa attacked him as a result of his conversion.  As above, whilst I accept the medical reports, and acknowledge the seriousness of his injury, requiring ongoing medical treatment, I do not accept that the injury was sustained when his uncle Musa attacked him.  I do not accept, in the circumstances, that the Appellant’s uncle will attack or harm him upon his return to Gambia.  I am satisfied that the Appellant was born into a Christian family and has always been Christian. I do not accept that his siblings were Muslim, as they were also born into a Christian family.  I also do not accept his claims of religious intolerance and inequality and I am not satisfied that such claims are supported by the COI before the Board.  The COI indicates that apart from a brief period, commencing in 2015, Gambia was an entirely secular state.  The COI does not indicate that there was religious persecution against minority religious groups at any time or that there has been any such persecution under the new president and government.  I am satisfied that the Appellant will be able to continue to practice his Christianity upon his return to Gambia in the same manner as he has done in the past.”   

31.It therefore seems clear to me that the adjudicator in her assessment of the credibility of this claim of the applicant did already take into account of the socio-cultural as well as political situations in The Gambia as revealed by the COI available and referred to by the Board, and while it may be argued that it is not wholly implausible for Christian parents to raise their children as Muslims for case-specific reasons, such reasons must in my view be specifically pleaded by the applicant in his claim, as unlike decisions based on personal or social-cultural or even political preferences or practices, those based on religious faiths are in many cases known to run much more deeper and stronger in their conviction that in the absence of any specifically pleaded reasons and in the circumstances of the situations in The Gambia as revealed by the COI, the adjudicator was in my judgment entitled not to accept the applicant’s claim that he was raised by his Christian parents as a Muslim until the age of 18 when he converted to Christianity that led to assaults and/or persecution by his uncle.

32.The applicant appeared to have only claimed at the hearing before the Board that because the population in The Gambia was predominantly Muslims, his Christian parents therefore raised him as a Muslim since his birth, but even where COI did indicate at that time under the reign of then President Jammeh when there were considerable restrictions on freedom of expression and political dissent, high standards of fairness do not entitle the applicant to simply state a general case and then sit back and require the adjudicator to disprove it, as the exercise of determining whether a claim made is valid must be a “joint endeavour”: CH v Director of Immigration [2011] 3 HKLRD 101; and TK v Jenkins [2013] 1 HKC 526.  Given the then situation in The Gambia as revealed by the COI above, and in the absence of any specific details provided by the applicant in support of his claim that his Christian parents raised him and his sister as Muslims, the adjudicator was in my view entitled to find in the circumstances such a claim as implausible or unacceptable, and for these reasons I do not find his complaint under Ground (2) reasonably arguable.

33.The same can be said about his complaint under Ground (3) that the Board failed to consider the relevant COI on Christian converts for the same reasons and given that even on the applicant’s own case that the risk of persecution arose from his Christian faith came only from his uncle, and as it is reasonably clear that the applicant and those representing him were aware of what he had to show as regards the situation of those who converted from Islam to Christianity if that was indeed his case, and in the absence of any such evidence from the applicant, and given the COI available and referred to by the Board, similarly I do not find any basis to challenge such finding of the Board, or that this ground is reasonably arguable in the applicant’s intended challenge.

Ground (4):  error in assessing change of circumstances in The Gambia

34.In this ground the applicant complains that the Board failed to demonstrate that it had taken into account the adverse materials showing that the issues that were actually pertinent to his claims continued to exist in The Gambia, such as in Human Rights Watch, World Report 2018: Gambia, under the section “Security Sector Reform”, it was described that Barrow’s government “had not yet begun a wider vetting of these agencies” such as the army, police, intelligence and prison services; and that there were still people being arrested and held in military detention without charge.

35.Mr Yeung submits that these are particularly relevant to the applicant’s claims in relation to risk of abuse by the security or intelligence agencies, ie the NIA, when the Board did refer to other parts of the report but not the part under “Security Sector Reform”.

36.Moreover, Mr Yeung argues that even if there have been “significant improvements and an increasing respect for human rights”, that it is not determinative as to whether there continues to be a real risk of persecution or ill-treatment, as a risk that is less serious than before can still be a “real risk”, especially when it did mention that recent COI continued to indicate that “demonstrators were subjected to torture and other ill-treatment following their arrest”, which was precisely, Mr Yeung argues, the subject of the applicant’s claims in relation to torture or ill-treatment by the NIA.

37.The part of its decision in which the Board referred to the relevant COI is as follows:

“ 65. … the COI before the Board indicates that there have been significant changes in Gambia since his (the applicant) departure in 2014. Thus, at the time the Appellant left Gambia in 2014, President Yahya Jammeh, who had first come to power in 1996 and had after that time won three further terms, continued to maintain his position of power. However, in December 2016 Jammeh lost government to his electoral opponent, Mr Adama Barrow. Jammeh subsequently went into exile after neighbouring countries threatened military intervention if he failed to relinquish the presidency. Following his exile, parliamentary elections held in April 2017 gave an absolute majority to the United Democratic Party which defeated Jammeh’s political party.

66.  Human Rights Watch reported in early 2018 that the human rights climate in in Gambia ‘improved dramatically’ as the new president, Adama Barrow, and his government took steps to reverse former President Yahya Jammeh’s legacy of authoritarian and abusive rule. It reports that after winning the election in 2016 and taking office in January, Barrow ‘moved quickly to distinguish his government from Jammeh’s, whose security forces used arbitrary arrests, torture and extrajudicial killings to suppress dissent and independent media during his 22 years in power’. Burrow’s government has released ‘scores of political prisoners’ and has begun to strengthen the judiciary and reform the security services. It also reversed Jammeh’s planned withdrawal from the International Criminal Court.

67.  The COI also indicates that the Gambia government has proposed the establishment of an ombudsman and a Truth and Reconciliation Commission to investigate abuses committed during the rule of Jammeh, and it has received international commendations for its attempts to establish closer relationships within the international community. It also indicates that the former head of the NIA, which was responsible for torturing and killing opponents of the former leader, was arrested and the agency has been stripped of its powers, with its name changed to the state Intelligency Agency.

68.  Reports also indicate that President Adama Barrow has pledged reforms of the media and has promised to ensure media freedom.  Human Rights Watch, reporting on freedom of expression and assembly during 2017, stated that the Barrow government largely respected media and opposition freedoms and promised to repeal laws that curtail freedom of expression.  Many journalists who fled Gambia during the Jammeh era, often after being arbitrarily detained or even tortured, have returned.  The government publicly apologized after a journalist, Kebab Jefang, was beaten by supporters of the ruling coalition after a March 5 press conference.”

38.The Board however did also note in its decision the following continuing concerns over political situation in The Gambia:

“ 60. I accept that some commentators have expressed continuing concerns over the political situation in Gambia. For example, Human Rights Watch, in its 2018 report, stated that the Gambian government has not yet amended laws that require a permit for public rallies; an infringement of freedom of assembly. A 12 November 2017 peaceful protest against electricity and water shortages, which the government had initially authorized but then prohibited on 11 November 2017, was dispersed by riot police. Furthermore, one person died and at least six were injured when Senegalese peacekeepers fired live ammunition to disperse demonstrators near Jammeh’s former residence in Knilai on 2 June.”

39.Of these concerns and their impact on its assessment of the COI on the current situation in The Gambia, the Board explained its view as follows:

“ 70. Thus, although I accept that there continues to be some degree of repression of political dissent in Gambia, the evidence indicates that there have nevertheless been significant improvements and an increasing respect for human rights, as acknowledged by international commentators. I have found above that although the Appellant was involved with the NUGS, he did not have an adverse political profile at the time he left Gambia and I am not satisfied that he will have an adverse political profile upon his return to Gambia. I am not satisfied that the Appellant will attract the adverse attention of the police, the security agencies of the government of Gambia more generally upon his return to Gambia.”

40.On the basis of the COI available to the Board, and it was clearly not restricted just to the Human Rights Watch, World Report 2018: Gambia referred to above, as evidenced by those other footnotes listed in its decision, in my judgment it was entitled to arrive at its above assessment of the situation of The Gambia, whilst the situation described under “Security Sector Reform” does not in my view sound as concerning as depicted by the applicant when that section was read as a whole as follows:

“ President Barrow in May 2017 underscored the need for comprehensive security sector reform, describing security institutions as ‘polluted’ because of their ties to Jammeh-era abuses. In February 2017, the National Intelligence Agency, which during the Jammeh era oversaw arbitrary detention and torture, was renamed the State Intelligence Services and its powers of detention eroded. However, while Barrow’s government has replaced the heads of the army, police, intelligence and prison services, at time of writing it had not yet begun a wider vetting of these agencies.

At least 12 soldiers arrested between July and November on suspicion of plotting against Barrow’s government were held in military detention, without charge, until being brought to court on November 17.  Gambia’s constitution requires that anyone suspected of a crime be brought to court within 72 hours.  The family of one soldier alleged that he was hospitalized after being beaten in detention.  At least 10 soldiers implicated in human rights abuses during the Jammeh era are still being held in military detention and have not yet been brought before a judge.”     

41.This must in my view be part of the continuing concerns over the political situation in The Gambia referred to by the adjudicator in her assessment [69 – 70].  As such and for the reasons given I do not agree there is any error in the Board in assessing change of circumstances in The Gambia, or that this aground is reasonably arguable.  

Ground (5): refusing time to obtain documents and adverse inference

42.Under this ground the applicant complains that the Board acted in a procedurally unfair manner in refusing more time for him to obtain supporting evidence from The Gambia when he had been detained in prison and then in CIC and was released only two months after his hearing before the Board, and as a result it should not have drawn any adverse inference against him for his failure to provide supporting documents. 

43.Whilst it is true that the applicant did personally and through his assigned duty lawyer complain to the Director about his difficulty in getting further documents in support of his claim while being imprisoned (Item 15 of HB pp 195 – 256), that was then in 2017 when he could have instructed his lawyer to obtain whatever further supporting documents for his claim before the Director, and that in his appeal hearing on 16 March 2018 before the Board, he again mentioned his complaint of not being giving sufficient time by the Director to obtain further supporting documents, but that was never his complaint against the Board or the adjudicator, nor did he ever ask the adjudicator for further time to enable him to obtain such documents, or at least that was not revealed in the transcript of his hearing before the Board (Item 24 HB p 338), and as evidenced by his following exchange with the adjudicator at the end of his oral hearing (HB pp 357 – 358):

“ 1:03:15 SP (Adjudicator): Mr [G], is there anything more at all, that you think we haven’t discussed today that you’d like to tell me?

1:03:35 G (Applicant): Well I think I just want you to give regards to the lapse of time, regarding the factual matters: the dates, the times, the years. It’s a long time I’ve been in prison and the detention—taking the interview under immense pressure. So it was not a matter of months that I should correctly remember all the details and the facts. I’d like you to consider that. From there also, consider the fact that the immigration officer failed to explore all the necessary means to get me for a screening interview. I provided a medical document and it was even different from the medical report. I provided a medical document from the HK Eye Hospital, telling them that I was unfit for the screening interview. They didn’t make an adjustment or wait for me to be released under good and fine circumstances to do the interview. They just provided with the questionnaire and it is my position that based on the 70 questions from the questionnaire, it is very difficult to arrive at the fair decision regarding my Non-refoulement Claim.

1:05:28 SP: Okay sorry. Is that all that you’d like to add or is there anything more you’d like to say today Mr [G]?

1:05:35 G: I think that’s all.  I think you understand that I am currently at the CIC and I am detained by the virtue of 37ZK of the Immigration Ordinance Laws of HK, pending your decision.  After your decision have been disposed of, there will be changes in the circumstances of my decision.  So I’m just pleading with you, to tell you, please help me with the decision as soon as practical.  Please. Because the moment the decision is received, circumstances of my decision will be changed.” 

44.It seems therefore clear to me that the Board did not refuse more time for the applicant to obtain supporting evidence, as there was never such request from him to the adjudicator during his appeal hearing before the Board, or for that matter before or after the hearing in his appeal.  As such this ground is clearly factually incorrect and is not reasonably arguable.

45.Accordingly, and for the reasons given, I grant leave to the applicant to judicially review the Board’s decision on his Ground (1), for which he is to issue and serve his originating summons within 14 days from his receipt of this decision, and that he shall also serve the relevant documents on the Board as respondent and the Director as interested party in accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A, with costs be in the cause.

Dated the 31^st day of May 2019.

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