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

HCAL 1566/2018

[2020] HKCFI 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1566 of 2018

BETWEEN

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. His application is therefore processed on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director of Immigration (“the Director”) as respondent and by deleting the Board as interested party.

The applicant

4.The applicant is a Gambian national. He came to Hong Kong on 15 November 2014 as a visitor and was permitted to stay until 29 November 2014. He overstayed and was arrested by police on 8 February 2015. He lodged his non-refoulement claim by way of a written signification dated 10 February 2015.

5.He claimed that if refouled, he would be harmed or even killed by his paternal family.

6.He is divorced, with two sons and one daughter in Gambia. He was brought up by her mother who is a Muslim. His paternal family members are Christians, but with idols worshipping and the occult of scarifying animals for curing illness. The one who administers the ceremony is called the “Witch Doctor”. His elder paternal uncle, Kajale was the Witch Doctor. One day, he was taken to a secret place where Kajale told him that he was chosen to take over his position as the Witch Doctor. He was unable to take that position as it was against his Muslim belief. He refused, whereupon he was locked up, beaten by wooden sticks and burned his fingers. He refused to take the food provided as he feared that he might be poisoned. Kajale threatened him that if he refused to take up the position, he would be killed. He was locked up there for three days. However, another uncle who was sympathetic with him freed him. However, this uncle was killed later. He did not report the matter to police because he knew that his paternal family were well-connected with the police and military people.

7.He hid himself up in his friend’s house. Knowing that his uncle had been killed, he was concerned about his safety and he arranged to leave Gambia. He went to China and through Shenzhen he came to Hong Kong.

The Director’s Decision

8.The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By Notice of Decision dated 25 August 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks he claimed if he returned to his own country was low [15]; that state protection was available to him [19] and internal relocation was an option open to him [20]. His claim under BOR 2 risk was not established.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 12 April 2018.

11.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s evidence and found that it did not accept the applicant’s evidence on the fact that he was chosen to be the Witch Doctor [100]; that he was detained and tortured [100]; that his uncle who had saved him was killed subsequently because of this matter [101]; that he hid himself in 2013 [102]; that his genuine intention of coming to Hong Kong was to seek protection [95] and therefore finally that he would be subjected to the risks as he claimed if he returned to The Gambia [103]. See §§45-103 for detailed reasons and analysis.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 7 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

15.Since the Board did not accept the facts the applicant alleged, the applicant has no factual basis in support of his claim.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.There is nothing that shows that the Board’s analysis was in error.

18.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

19.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of June 2020

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