Case Document

100%Judiciary

HCAL 1760/2018

[2020] HKCFI 1361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1760 of 2018

BETWEEN

	Sillah Haji	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 12 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. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. The applicant was absent at the hearing. I shall deal with his application on paper.

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

The applicant

4.The applicant is a Gambian national. He came to Hong Kong on 29 May 2014 as a visitor and was allowed to stay until 27 August 2014. He overstayed and surrendered to the Immigration Department on 28 August 2014. He lodged a non-refoulement claim on 26 September 2014.

5.He claimed that if refouled, he would be harmed or even killed by the former president Yahya Jammeh (“Jammeth”) and/or his government because he had filed a case against him for his failing to pay for a garment order.

6.In 2012, Jammeth placed an order for 60,000 T-shirts for USD 30,000 with him. He delivered the goods, but Jammeth did not pay for the goods. In October 2013, he filed a case against Jammeth. Jammeth sent soldiers to his home and took him to a prison cell where he was tortured by the soldiers. He was detained there for a month. He was tortured and the soldiers struck his head with a gun. His head was injured with scars. He was detained there for a month and was released. He went home. However, he saw Jammeth’s soldiers came again. He fled from his home and went to West Africa. He then went to China.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 23 June 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of harm from Jammeth if he returned to Gambia was low [12]; that state protection was available to him [16] and internal relocation was an option open to him [19]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. However, he did not attend the hearing on 28 March 2018.

10.Pursuant to section 15 of Schedule 1A of the Ordinance, the Board sent a notice to the applicant and demanded an explanation for his absence, with a warning that if he failed to do so within 7 days from the date of the notice, the Board would proceed to consider his application in his absence. The applicant did not reply and the Board proceeded to consider his application in his absence.

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 his evidence was exaggerated, contradictory, incredible and inherently implausible. He was not available for clarification. The Board rejected his evidence on the facts as he claimed. See §25-28 of the Board’s Decision.

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 28 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 any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

15.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.

16.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.The applicant has no factual basis in support of his application.

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 7th day of July 2020

	(Mike Mak)
	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 to the Applicant on 7/7/2020 Sillah Haji Applicant’s ref. no: Nil.		Sent 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 7/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7708/17/7/89/GA55 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)