Ceesay Ahmad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1622/2019

[2021] HKCFI 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1622 of 2019

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 P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong on 4/11/2016.  He overstayed until 21/11/2016[1]. He surrendered to the Immigration Department.  He filed the non-refoulement claim in this case on 13 and 15/1/2017.

2.His non-refoulement claim was rejected by the Director on 27/9/2018. His appeal to the TCAB was rejected on 10/6/2019.  He filed the leave application for judicial review on 14/6/2019.

3.The applicant feared that he might be harmed or killed by the police if he returned to Gambia.  He was involved in the activities of the UDP during the rule of the previous government controlled by the APRC.[2]

Background

4.The applicant was born on 28/4/1993.  He was from Bundung SerreKunda, Gambia.  His mother and siblings lived in Gambia.  He was single.  He received 13 years of education up to university level.  He had never worked.

5.In 2012, he was an active member of the UDP.  He did not hold any office.  The ruling party was APRC.  There were serious human rights and corruption problems in Gambia then.

6.He joined the protest organized by the UDP in April 2016.  The police used tear gas to disperse the protest by force.  The leader of UDP was arrested.  The leader was allegedly killed in prison.

7.There was another protest at the end of April 2016.  He was arrested and beaten while detained.  His uncle, who was a police officer, managed to smuggle him out of the prison several days later.  He was injured all over his bodies.  He had no time to consult a doctor.  He just took drugs bought from a pharmacy.

8.His uncle immediately arranged him to flee to Dakar, Senegal.  He stayed there for a few months before departing for Hong Kong.  He encountered no problem when departing Gambia.  He was safe in Senegal.

9.He did not return to Gambia during this period as the Gambian police were looking for him.  However, there were entries in his passport recording that he had left Senegal and returned to Gambia on 29/7/2016.  He then left Gambia and returned to Senegal on 2/11/2016.

10.He explained to the Director that he just went to the border area between Gambia and Senegal to collect money sent from his uncle via some drivers.

11.After he recovered from the injuries, he took a flight from Senegal to Hong Kong.  He arrived at Hong Kong on 4/11/2016.  He was allowed to stay as a visitor for 2 weeks.

12.While in Hong Kong, his mother and uncle informed him that the Gambian police were looking for him.

13.The police were very powerful.  He could be located anywhere in Gambia.  He could not remain in Senegal either.  He did not think the authorities in Gambia would protect him.  Even though there was a change of the ruling party in December 2016, he asserted that some soldiers might still carry out the order of the ousted president.

Decision of the Director of Immigration

14.The Director concluded that the risk of harm from the Gambian police was low.  The reasons were:

(a)   The assault after his arrest was not serious.  He was able to escape from prison with the assistance of his uncle.  He travelled for 12 hours to Senegal immediately.  He only took some drugs bought from a pharmacy.  There was no evidence to prove any ill-treatment which amounted to a minimum level of severity.

(b)   He joined the UDP in 2012.  He did not hold any office.  His participation was at a low level.  There was no reason that the ruling party or the police would target him.

(c)   In December 2016, the incumbent president was ousted after an election.  The leader of UDP and other opposition leaders were appointed cabinet ministers by the newly elected president.  There was no evidence that the new government would target the applicant.

(d)   The applicant insisted that there might be some loyal soldiers carrying out the commands of the ousted president.  This was mere speculation.  There was no evidence to support such an assertion.

(e)   The entries in his passport clearly showed that he had returned to Gambia in July 2016 and stayed there for a few months.  This conduct was inconsistent with someone who asserted that his life was in danger in Gambia.

(f)   He could enter and leave Gambia even after his escape from detention.  This showed that he was not targeted by the government.  Given his long absence from Gambia, the threat against him should have been dissipated.

(g)   The Director accepted that there was corruption and human rights problems in Gambia.  There was arbitrary detention and torture by the police.  There was suppression of freedom of speech and mistreatment of political opponents during the rule of the former president.  On the other hand, there were reports that the new Gambian government had implemented reforms.  Political prisoners were released.  The government did enforce protections in human rights and fundamental freedoms enshrined in the constitution.  The National Human Rights Unit was tasked to promote and protect human rights.  The Director was satisfied that there was reasonable State protection in Gambia.[3]

(h)   Gambia permitted internal relocation. Gambian government had assisted displaced nationals returning to Gambia.  Gambia was 12,000 km² with 2 million people.  It would be reasonable for the applicant to relocate to Basse in Gambia. It was difficult to locate him.

15.The Director dismissed his claim based on BOR 2, BOR 3, persecution and torture risk.[4]

Decision of the Torture Claims Appeal Board

16.There was a hearing on 28/2/2019.  The applicant gave evidence.  The adjudicator concluded that he was not credible.  The adjudicator rejected the appeal based on the following findings:[5]

(a)   The adjudicator found that the passport entries clearly contradicted the applicant who asserted that he never returned to Gambia once he left.  Whereas, he left Senegal for Gambia on 29/7/2016 and stayed there until 2/11/2016.  In fact, he could pass through the immigration of Gambia without any problem.  This undermined his claim that his life was in danger and he was wanted by the authorities for political activism in Gambia.

(b)   The applicant stated in the claim letters that his uncle assisted his escape as he was the only child in the family.  It turned out in his NCF that he had 4 siblings.  He further explained that he was the only son.  When it was pointed out that he had a younger brother, he then said his brother had died notwithstanding that it was not mentioned in the NCF.

(c)   The applicant insisted that the Gambian police was looking for him.  This was contradicted by the COI which reported that opponents of the former regime had been released and appointed to posts of the current government.  The applicant’s assertion was without basis.

17.The adjudicator concluded that the applicant was not an opposition political activist.  He was not arrested and detained by the Gambian authorities because of political activities.  He was not ill-treated as he described.  There was no real risk that he would be harmed or killed by the Gambian police.

18.There were abundant COI which revealed that the situation in Gambia had changed.  There was no basis that the applicant would face serious risk in foreseeable future.

19.The adjudicator rejected his appeal on all applicable grounds on 10/6/2019.

Judicial Review

20.The applicant filed the leave application for judicial review on 14/6/2019. In the affirmation in support of the application, he did not mention any specific complaint.

21.This court fixed a hearing on 2/2/2021.  The notice of hearing was sent to the address according to the record of the Immigration Department as of 30/10/2020.  There was no return of mail.  The applicant has the duty to update his contact address with the Immigration Department.  He must bear the consequence of any failure to update.

22.There is no error of law or procedures.  The decision of the TCAB is rational.  The intended leave application is without merit.

Conclusion

23.In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 20^th day of May 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