Bah Karamo v. Torture Claims Appeal Board and Another

HCAL 683/2018

[2021] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 683 of 2018

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 oral submissions by the Applicant 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 42-year-old national of The Gambia who last arrived in Hong Kong on 23 May 2014 with permission to remain as a visitor up to 21 August 2014 when he did not depart and instead overstayed, and on 22 September 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 for political reasons. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Lamin, Kombo, North District, West Coast Region, The Gambia. After leaving school he worked as a carpenter and later as a waiter, got married and raised a family with 1 son and 2 daughters.

3.In 2006 his elder brother Momodou who was a senior military officer in the army was arrested together with other officers for a failed coup d’etat, and was subsequently convicted and sentenced to prison for 25 years, but in 2009 Momodou was given a presidential pardon with a promotion to the rank of a major, but was called as a prosecution witness against the former Chief of Staff Tombong charged for treason for an earlier failed coup, and who was subsequently convicted and sentenced to death.

4.Afterwards the Applicant started to hear from other people that his brother Momodou had as a result made many enemies within the military by giving evidence against a former colleague, and that he and other male members of his family including the Applicant would be at risk to being harmed or killed, which caused the Applicant to become fearful for his life and felt it was not safe to remain in The Gambia, and so one day in January 2014 he departed for China, and from there he later 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 (“NCF”) on 15 March 2016 with legal representation from the Duty Lawyer Service (“DLS”) but without attending any scheduled screening interviews before an immigration officer due to alleged medical reasons.    

5.Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on 16 May 2015 for trafficking in dangerous drugs, for which he was subsequently convicted and sentenced to prison for 12 months.      

6.By a Notice of Decision dated 23 June 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 his perceived enemies upon his return to The Gambia as low due to the absence of any past ill-treatment from anyone, that while reliable Country of Origin Information (“COI”) show that someone in the same name of his brother did give evidence against the former Chief of Staff for treason but there is no evidence form the Applicant other than his bare assertion that that was in fact his elder brother, that even if it was indeed his elder brother that no harm or anything bad had ever happened to him or his family, that his claimed fear of being harm or killed as a result is based entirely on his own speculation unsupported by any evidence, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective COI show that reasonable internal relocation alternatives are available in The Gambia with a large population spread across a vast territory 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 in large cities such as Banjul or Brikama where it would be difficult if not impossible for his perceived enemies to locate him.

8.By a Notice of Further Decision dated 14 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional facts submitted by him which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 5 July 2016, and for which he attended an oral hearing with his lawyer from DLS on 5 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found even on the basis of the Applicant’s own case that there is no evidence of any harm ever happened to his elder brother or his family in The Gambia either before or after his departure from the country, that it is his own speculation that he would be affected by his elder brother’s position in the last government, and that reliable and latest COI show that it is safe for his elder brother to continue to be actively engaged in politics and hence also safe for the Applicant to return to The Gambia without any risk of his asserted harm from anyone that his claim for non-refoulement protection failed on all applicable grounds.        

11.On 19 April 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 is not satisfied with their decisions which rejected his claim without reasonable ground but without providing any details or particulars how they were so, nor did he put forward any other proper ground for his intended challenge at the hearing of his application. As such and in the absence of any error in 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 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.Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulemen protection in Hong Kong: 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 12^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