Case Document

100%Judiciary

HCAL 2579/2018

[2020] HKCFI 1740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2579 of 2018

BETWEEN

	Kambay Lamin	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	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 documents only; or
	consideration of documents and the 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 respective decisions dated 13 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Boards Decision”) and dated 25 July 2018 of the Director of Immigration (“the Director’s Decision”).

2.He was absent at the hearing on 25 September 2018. There being no evidence that he did not receive the Notice of Hearing or that he was unable to attend court and in order to dispose of the matter on the merits rather than technically on the procedure, I consider that he had abandoned his right to be heard and I shall proceed to consider his application on paper.

The applicant

3.The applicant is a national of Gambia. He came to Hong Kong from as a visitor on 31 October 2014 and was allowed to stay until 29 January 2015. He overstayed. He lodged a non-refoulement claim on 4 February 2015.

4.He claimed that if refouled, he would be harmed or killed by the United Democratic Party (“UDP”).

5.He claimed that one day in 2013 he went to see his grandmother. The next day, he was told by his neighbour that his parents and siblings had been murdered by UDP people. He suspected that it was because his father was not willing to take corruption that the other members did not like him.

6.He was advised not to return to his home. He flew to Cote d’lvoire where he stayed for a month. Cote d’lvoire was politically unstable at that time. He then flew to China and Indonesia. He found that China would not offer asylum for foreigners. He did not like Indonesia. On 6 February 2014, he came to Hong Kong and stayed here. He had married here with two sons.

The Director’s Decision

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

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

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 25 July 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 6 November 2018.

10.By Decision dated 13 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence. It came to the conclusions below. See paragraphs 36-55 of the Board’s Decision.

a.There was no evidence that his family was murdered by UDP people. The evidence was hearsay evidence.

b.There was no evidence why his family was killed.

c.Evidence showed that he was able to leave his country without difficulty. It was doubtful that UDP, the ruling party, was behind the murder of his family.

d.The applicant was not tortured within the context of section 37U of the Ordinance before he left Gambia.

e.He did not report the matter to police. However, the Country of Origin Information showed that state protection would be available to him.

f. Internal relocation was an option open to him.

Application for leave to apply for judicial review

12.He filed Form 86 on 16 November 2018 for leave to apply for judicial review of the Board’s Decision.

13.He did not set out any reasons in his affirmation to show where the Board’s Decision is wrong.

DISCUSSION

The Director’s Decision

14.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.It is obvious that the applicant failed to establish the facts in support of his claim before the Board. Since the Board did not found his case proved by evidence, he had no factual basis in support of his claim.

17.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 29^th 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 29/7/2020 Kambay Lamin 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 29/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 12821/18/8/91/GA116 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 2030/18 (formerly RBCZ 11151/16)(T3S112) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)