Jammeh Alhagi v. Torture Claims Appeal Board and Another

HCAL 115/2018

[2021] HKCFI 1698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 115 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:

1.  the Order of Deputy High Court Judge K.W. Lung dated 14 November 2018 dismissing the Applicant’s application for leave to apply for Judicial Review for want of prosecution be set aside; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of The Gambia who arrived in Hong Kong on 2 October 2014 with permission to remain as a visitor up to 31 December 2014 when he did not depart and instead overstayed, and on 2 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 First Lady of The Gambia President Jammeh or her people over a road incident and/or by his maternal uncle for lying to him over some money issue.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Tallinding, Serekunda, The Gambia.  After leaving school he worked as a carpenter before running his own clothing business in his home district.

3.One night in August 2014 while his friend was driving him home, they ran into the motorcade of the First Lady of President Jammeh, and when his friend failed to make way for the motorcade, someone from one of the vehicles fired some shots at them which hit the car and shattered the rear window that frightened the Applicant and his friend that they got off the car and tried to run away, which the Applicant managed to do but his friend was caught by the First Lady’s body guards.

4.Afterwards the Applicant fled to hide in his cousin’s place, and as he was unable to contact his friend again, he suspected that he might have been killed by the First Lady’s bodyguards, and became fearful that they would come after him that he decided to leave the country, and so he lied to his maternal uncle that he needed to borrow some money for his business, and with the money from his uncle he made arrangement to leave The Gambia, which he did in August 2014 for Senegal, and from there he flew to China, and on 2 October 2014 he arrived in Hong Kong, and during his stay he heard from his mother that his uncle had threatened to kill him for lying to him over the loan, and so he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.Whilst released on recognizance pending the determination of his claim, the Applicant was arrested by police on 5 September 2015 for trafficking in dangerous drug for which he was subsequently convicted and sentenced to prison for 14 months.     

6.By a Notice of Decision dated 5 August 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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 the First Lady’s people or his maternal uncle upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that any threats or harm had actually been made or inflicted on the Applicant by either the First Lady’s people or the Applicant’s maternal uncle other than hearsay and his own speculation, that reliable and objective Country of Origin Information (“COI”) show the situations in The Gambia have changed significantly since his departure including the fact that President Jammeh had lost the election in 2016 and that he and his wife had since left the country in exile and hence would not pose any threats to the Applicant, while any dispute between him and his maternal uncle was a private family dispute without any official involvement that state or police protection would be available to the Applicant upon his return to the Gambia if so required, and that COI also show that reasonable internal relocation alternatives are available in The Gambia with a large population of 1.9 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 his perceived enemies to locate him.

8.By a Notice of Further Decision dated 23 February 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts 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 (“Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 18 December 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no evidence that the Gambian authorities had been looking for the Applicant all these years in particularly of the fact that President Jammeh has since 2016 gone into exile after losing the election that there is no reason why the present government would have any adverse interest in the Applicant for something allegedly happened in a minor road incident years ago involving the former regime and that the Applicant was not even the driver of the vehicle involved, while it also doubted that his maternal uncle was serious with his threats, and that in any event with state/police protection available to the Applicant upon his return to The Gambia as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all application grounds.

11.On 24 January 2018 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:

(a)  that the Director and the Adjudicator reached the wrong decision in assessing his non-refoulement claim;

(b)  that their decisions were not reasonable or fair as required by the Wednesbury test; and

(c)  that their decisions failed to properly recognize and consider the fact that the Applicant is a genuine non-refoulement claimant who faced dangerous problems and torture in his home country.

12.However, the Applicant failed to attend the scheduled oral hearing of his application on 14 November 2018, and as a result his application was dismissed by Deputy High Court Judge K.W. Lung on the same day for want of prosecution.

13.On 30 June 2020 the Applicant issued a summons for leave to proceed with his application which has now come before me.  In his affirmation the Applicant merely stated that he was late with his application as he was ignorant and could not afford any legal representation, and at the hearing he was not able to provide any meaningful explanation as to why he failed to attend the hearing of his application on 14 November 2018 which led to the dismissal of his application for want of prosecution.

14.However, as the Court of Appeal has held in Re Abdus Salam [2019] HKCA 109 at [14] – [25] that an application for leave to apply for judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application, that the correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of his absence at the hearing, and to proceed to determine the leave application on its merits.

15.Accordingly, I set aside the order of 14 November 2018, and proceed to determine the merits of the Applicant’s leave application, starting with the consideration of his proposed grounds as noted above for his intended challenge.       

16.They are however essentially just some broad and vague assertions of the Applicant containing a few 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 in what way were their decisions wrong or unreasonable or unfair.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

17.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. 

18.In the Applicant’s case, 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.       

19.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. 

20.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 15^th day of June 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