Sanyang Omar v. Torture Claims Appeal Board

HCAL 1877/2018

[2020] HKCFI 2035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1877 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 32-year-old national of The Gambia who arrived in Hong Kong on 10 December 2014 with permission to remain as a visitor up to 10 March 2015 when he did not depart and instead overstayed until 12 March 2015 when 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 or security agency for political reasons.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Serrekunda, the Gambia of Mandinka ethnicity.  After leaving school he worked as a financial controller for the Berefet Cultural Camp in Village Berefet, and followed his family’s footstep to become a supporter of the political party United Democratic Party (“UDP”) of which his grandfather was a long term supporter and the elected head of Village Berefet, and which was the opposition party to then President Yahya Jammeh of The Gambia and his ruling party Alliance for Patriotic Reorientation and Construction Party (“APRC”).

3.One day in 2011 after a UDP meeting held in Village Berefet during which his grandfather had criticized the dictatorship of President Jammeh, several officers of the National Intelligence Agency (“NIA”) arrested his grandfather and detained him in Banjul where he was threatened not to hold any further such UDP meetings in Village Berefet before releasing him the following day.

4.Since then his grandfather kept a low profile in the village until 2013 when President Jammeh replaced his grandfather with one of his supporters Nfansu as the new village head who then proceeded to terminate the Applicant’s job in Berefet Cultural Camp, and when the Applicant confronted Nfansu over his decision, Nfansu threatened to kill him if he continued to go against the government.

5.As a result of the threats, the Applicant was advised by his father and grandfather to leave the country for his own safety, and so in July 2013 he departed for Senegal where he stayed without incidents, but as he was not a citizen there and was therefore not allowed to work in Senegal, he subsequently returned to The Gambia in March 2014 but instead of returning to his home, he hid in a friend’s place in Tallinding. 

6.As he still felt it was not safe to remain in The Gambia, the Applicant therefore departed again for Senegal on 8 December 2014, and from there he travelled to Hong Kong where he overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 3 October 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Gambian authorities upon his return to The Gambia due to the absence of any past ill-treatment from them, that there is no evidence of him being targeted by the former regime of President Jammeh when they were only against his grandfather and not the Applicant, that in any event since losing the last election President Jammeh has been in exile and that its regime has been replaced by a new government under the current President Barrow who has promised reforms in human rights protection for the citizens and with state protection available that there is no reason for the Applicant to fear any harm from the former regime or its security agency, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a vast territory of more than 10,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other parts of The Gambia away from his home district where it would be difficult if not impossible for his perceived enemy to locate him.

9.The Applicant then 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 26 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found the Applicant to have changed the basis of his claim from fear of harm from the Gambian authorities, of which he conceded at the hearing that he no longer has, to fear of the general population which he claimed to be still supportive of the former regime of President Jammeh despite his defeat in the election and his subsequent exile, but of which there is no evidence of any such threats exist or that the Applicant has ever suffered such threats or ill-treatments from such part of the population in The Gambia, that the latest COI show that significant changes have occurred in the country under the new government and within the NIA that it did not accept that there would be any risk of harm from the authorities against the Applicant or that would instigate any such risk from the population where the majority is of the same Mandinka ethnicity of the Applicant, and that in any event if there were indeed any risk of harm from the residents in his home village in Berefet, it would not be unduly harsh for him to move to other parts of The Gambia to safely re-establish his life and work without any risk of being located by his perceived enemy that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 10 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his country until his problem is solved but without putting forward any proper or valid ground for his intended challenge, nor did he request 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board. 

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.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

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 19^th day of August 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