Case Document

100%Judiciary

HCAL 379/2018

[2020] HKCFI 1592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 379 of 2018

BETWEEN

	Jagne Mbye	Applicant
	and
	The Director of Immigration	1^st Putative Respondent
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	2^nd Putative Respondent

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of the Gambia who arrived in Hong Kong on 13 June 2014 with permission to remain as a visitor up to 11 September 2014 when he did not depart and instead overstayed, and on 9 October 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to the Gambia he would be harmed or killed by the Gambian government for assisting his uncle who had been arrested over some false charges. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Madina Serigne Mass, the Gambia. After leaving school he assisted his father in his business and later ran his own clothing business, but would also from time to time assist his uncle in managing his bank accounts as his uncle was too busy with his job as a senior civil servant.

3.In 2013 while the Applicant had travelled to Dakar in Senegal for buying goods for his business, he heard from the news that his uncle had been arrested by the Gambian authorities for abusing his office and conspiracy to commit a felony, and that he was advised by his family not to return to the Gambia for fear that he may be implicated.

4.In early 2014 the Applicant was informed by his family that his uncle had been convicted and sent to prison, and was warned that he must continue to stay away from Gambia by going to another country as it would not be safe for him to remain in Senegal as it was too close to the Gambia, and so in June 2014 he travelled 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 22 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 1 June 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 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”).

6.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 Gambian government upon his return to the Gambia as low due to the absence of past ill-treatment from them, that there was no evidence that he was being pursued by the Gambian authorities other than his own speculation, that in fact after a change of presidency and government in the Gambia after the 2016 presidential election that his uncle had been released from prison and was being invited to join the new government that there should not be any risk of harm to the Applicant upon his return to the Gambia, that the latest Country of Origin Information show that the constitution, laws and policies of the present Gambian government do protect human rights and freedom of its citizens with state protection readily available to the Applicant if need be, as well as reasonable internal relocation alternatives in the Gambia with a large population of 2 million people spread across a vast territory of more than 11,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Gambia away from his home district in large districts such as the capital Banjul and Basse where he can safely re-establish his life and work without any risk of being located by his perceived enemy.

7.On 13 June 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 25 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 15 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no evidence that the Applicant had ever been pursued by the Gambian authorities over his connection with his uncle who in any event has since been cleared of the charges for which he was earlier arrested, that there is no reason to believe that the Applicant would be at risk of harm in the Gambia simply based on his relationship and connection with his uncle, and that the commissioner enquiry currently underway in the Gambia is into the affairs of the former president with no indication that the Applicant’s uncle is of any adverse interest to the current government that the Applicant’s fear of harm to himself is both far-fetched and fanciful that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

9.On 8 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with their decisions in rejecting his claim without any reasonable grounds, but he did not provide any particulars or elaboration as to how they were so, but it is plain in the decisions that both did set out clearly and in details their reasons for rejecting his claim. The Applicant did not put forward any other grounds for his intended challenge, nor did he request for any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

10.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.

11.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.

12.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 28^th day of July 2020.

(NG Hang-yin)
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 his 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 28th July 2020 Jagne Mbye 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 28^th July 2020 The Director of Immigration 1^st Putative Respondent’s ref. no.: QA T/C 632/17 (Formerly RBCZ 3002063/14)(T3S28) Torture Claims Appeal Board / Non-refoulement Claims Petition Office 2^nd Putative Respondent’s ref. no.: USM 7473/17/6/169/GA52 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)