Darboe Lansana v. The Director of Immigration and Another

HCAL 992/2018

[2020] HKCFI 295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 992 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Gambia who arrived in Hong Kong on 26 November 2014 with permission to remain as a visitor up to 24 February 2015, but on 24 January 2015 he was arrested by police for trafficking in a dangerous drug for which he was convicted and sentenced to prison for 10 months, and upon his discharge from prison and when a removal order was issued against him by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Gambia he would be harmed or killed by the Gambian government for political reasons.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Banjul, Gambia.  After leaving school he worked in various jobs including selling mobile phones and other goods, and joined the political party United Democratic Party (“UDP”) founded by its leader Ousainou Darboe whom the Applicant claimed to be his paternal uncle and which had conducted various activities opposing the then President Jammeh and his government.

3.One day in November 2014 the Applicant was informed by his uncle that the government had issued an arrest warrant against the Applicant for participating in activities against the government, and was advised to flee the country for his own safety.

4.The Applicant therefore fled to Dakar, Senegal, and from there he flew to Hong Kong on 26 November 2014 where he was arrested by police for drug trafficking, and upon his subsequent release from prison, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 20 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.Whilst being released on recognizance pending determination of his claim, the Applicant was again on two separate occasions arrested by police for possession of dangerous drugs, for which he was convicted and respectively given a fine and sentenced to prison for 26 months.     

6.By a Notice of Decision dated 27 February 2018 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 Ordinance, Cap 383 (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the government authorities upon his return to Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of him being actually harmed or pursued by the authorities government other than hearsay from a third party, that he was able to leave the country without problem show that he was not being pursued by the government, and that reliable and objective Country of Origin Information (“COI”) show that President Jammeh had gone into exile after losing the 2016 election and his government was no longer in power that it is doubtful that there would still be any adverse interest in the Applicant, and as the Applicant’s party UDP has since become the ruling party of the country that it is not accepted that the Applicant would face any real risk of any harm upon his return to Gambia that his non-refoulement claim was rejected on all applicable grounds.

8.On 3 March 2018 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 15 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of his political activities and involvement in UDP in particularly his inability to provide particulars of his party that it had doubt over his claim, but accepted that even if it is true that he was ever a member of UDP and that its leader Ousainou Darboe was indeed his uncle and that he was indeed wanted by the then Jammeh’s government, that based on the latest COI that since Jammeh lost the 2016 election and had gone into exile, and as UDP has won the election and has since become the ruling party with one of its members Adama Barrow having become the President, and with his alleged uncle Ousainon Darboe being appointed the Minister for Foreign Affairs, it is not accepted that the Applicant will face any risk of harm from the new government upon his return to Gambia that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 1 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case that he was tortured at the behest of and with full collusion of the police and the state law enforcement agencies that the state would be held liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(2)  that the Director failed to consider or give sufficient weight to the relevant COI which support the Applicant’s aversions that the police in Gambia would not be able to protect;

(3)  that the Director only relied on those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude shown by the Director which is itself enough to render his decision void;

(4)  that the Director failed to consider that corruption and incompetency of the administration in Gambia is still a very serious problem as shown by various human rights organization reports which stated testament to the Applicant’s assertions;

(5)  that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(6)  that the adjudicator failed to make sufficient enquiry before finalizing the determination of his claim; and

(7)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.  

11.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his case, or how did the Director or the adjudicator fail to rely on the relevant COI in their assessment of the situation in Gambia, or how did the adjudicator fail to conduct sufficient enquiry or to give the Applicant sufficient opportunity to adduce his evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such and given the latest political situation in Gambia as found by both the Director and the Board, I do not find any of them reasonably arguable for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his claimed fear of harm from the previous government in view of the dramatic political changes since his departure from his country and the current political situation in Gambia including the fact that UDP has since become the ruling party and with his uncle being appointed as an important minister in the government as evidenced by the latest COI for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 97 of its decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.      

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 14^th day of July 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