Badjie Malick v. Torture Claims Appeal Board and Another

HCAL 1129/2017

[2021] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1129 of 2017

BETWEEN

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 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 7 October 2014 with permission to remain as a visitor up to 5 January 2015 when he did not depart and instead overstayed, and on 12 January 2015 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 National Intelligence Agency (“NIA”) for having witnessed and reported an accident caused by the presidential convoy of then President Jammeh to the press. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Gunjur, Kombo, South District, The Gambia. After leaving school he worked as a teacher in a school some 40 km from his home.

3.One day in June 2013 while he was on his way to work, the Applicant witnessed an accident of a small child being knocked down by the presidential convoy passing through without stopping with then President Jammeh inside one of the vehicles, and after he had told a news reporter of what he saw, a few weeks later he was told by a friend that the reporter had been arrested by the NIA, and that he should leave the country for his own safety, and so the Applicant departed The Gambia on 30 September 2014 for China, and from Guangzhou he then 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 16 December 2016 and elected not to attend screening interview before the Immigration Department.     

4.By a Notice of Decision dated 16 March 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”).

5.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 NIA people upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that there is no reliable evidence other than some hearsay that NIA were going after the Applicant prior to his departure from The Gambia, that the former President Jammeh has since left the country to go into exile after losing the 2016 election and would no longer pose any threats to the Applicant, that under the present presidency and government with a much more open and democratic political situation in The Gambia that state or police protection would be available to the Applicant if resorted to, 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 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 country away from his home district where it would be difficult if not impossible for him to be located.

6.On 31 March 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 8 November 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 4 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found inconsistencies, irregularities and confusions in the Applicant’s evidence as to his alleged events occurred in The Gambia which led to his departure that it doubted his claim as unreliable, and that in any event any such risk as claimed would have been significantly diminished if not entirely eliminated since 2016 when a new president was elected with a much more open and democratic government in place of the defeated former President Jammeh who has since left the country to go into exile and with no further reason for the NIA to go after the Applicant if indeed that was the case in the first place that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.      

8.On 21 December 2017 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 which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(2)  that the Director failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered 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;

(3)  that the Director had failed to consider or give sufficient weight to the evidence listed in relevant COI which supported the Applicant’s aversions that the police in Gambia would not be able to protect and ruled otherwise in the assessment of the Applicant’s claim;

(4)  that the Director referred to those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which is in itself enough to render his decision void;

(5)  that the Director failed to recognize the corruption and incompetency of the administration in Gambia is still a very serious problem which various human rights organizations have reported which stated testament to the Applicant’s assertions;

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

(7)  that the Adjudicator failed to make sufficient enquiry before finalizing the determination; and

(8)  that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his claim as well as his appeal.  

9.All these however appear to me to have been copied from some pro forma commonly used in this type of applications but which are entirely irrelevant to the Applicant’s case, or that they are just some 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 what relevancy is state acquiescence to his claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to conduct sufficient enquiry or to apply high standard of fairness in their determination of the Applicant’s claim, or how did the Adjudicator fail to provide the Applicant the opportunity to provide 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 who also failed to attend the hearing of his application without any explanation. As such I do not find any of these grounds reasonably arguable for his intended challenge.

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 Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 60 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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, and given the indisputable fact as found by both the Director and the Board of the significant changes to the presidency and government as well as the political situation in The Gambia since the Applicant’s departure which would not pose any risk to him upon his return to his home country, I simply do not find any reasonably arguable basis for him to challenge the finding of the Board.        

12.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.

13.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 5^th day of March 2021.

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