Willan Mustapha v. Torture Claims Appeal Board

HCAL 1980/2018

[2021] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1980 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 March 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of The Gambia who arrived in Hong Kong on 27 June 2014 with permission to remain as a visitor up to 25 September 2014 when he did not depart, and on 26 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 by the National Intelligence Agency (“NIA”) due to his close relationship with his uncle who had been arrested and imprisoned by the authorities in connection with some criminal offences. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Medina Sering Mass Lower Numim District, The Gambia. In 1997 he moved to reside in Latri Kunda, Sabji where he got married, and in 2006 he started to be employed by the Gambian government as a driver for government officials and ministers.

3.In 2009 his uncle was appointed by then President Jammeh as the Secretary General of the Ministry of Presidential Affairs and Head of Civil Servants of the Gambian government who then made the Applicant as his personal driver.

4.However, in early 2014 his uncle was arrested by the NIA for abuse of his office and was subsequently imprisoned, while the Applicant was able to continue with his job in the government, but when he was later informed by his wife that some NIA agents had come to their home looking for him for information, he feared that he might also be arrested due to his close relationship with his uncle, and so he fled to Dakar in neighboring Senegal, and from there he travelled to China on 31 May 2014, and on the following day to Hong Kong where he subsequently overstayed and surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 October 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 24 February 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from NIA upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that there is no evidence of any adverse interest of the Gambian authorities in him, that in any event in July 2015 then President Jammeh pardoned and released more than 200 prisoners including the Applicant’s uncle and hence neither NIA or the Gambian authorities would have any further adverse interest in the Applicant, and that reliable and objective Country of Origin Information (“COI”) shows 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 parts of The Gambia away from his home district in large cities such as Brikama or Bakau where it would be difficult if not impossible for him to be located.

7.By a Notice of Further Decision dated 16 January 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”).

8.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, the notice of which was filed on 4 March 2016, and for which he attended an oral hearing on 28 February 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 29 March 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found no evidence of any adverse interest of the NIA or the Gambian government or authorities in the Applicant after the pardon and release of his uncle by the former President Jammeh in 2015, that in any event President Jammeh had since lost the subsequent General Election and had departed The Gambia in January 2017 in exile and would therefore not pose any risk to the Applicant or his uncle, that there is no evidence or reason for the newly elected President Barrow to have any adverse interest in either of them, that it also rejected the Applicant’s new claim made at the appeal hearing of his alleged fear of harm from the Gambian police over any crime which he claimed to have committed prior to his departure of the country which he had never previously disclosed in his NCF or before the Director that it was rejected by the Board as a complete fabrication by him, and concluded that the Applicant would not face any real risk of harm from anyone upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.        

10.On 19 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground was given in his Form or in his supporting affirmation of the same date when he merely repeated his claim of fear of harm or arrest by the Gambian government due to his relationship with his uncle but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.As the last day of the three-month period within which the Applicant should file his Form 86 fell on 29 June 2017, he was therefore almost 15 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

13.In the Applicant’s case, a delay of almost 15 months must be considered as extremely substantial and excessive, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good reason for his such serious delay.

14.As for the merits, if any, of his intended application, as noted above he has also failed to put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 or merits in his intended application either.

15.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.

16.In the Applicant’s case, the Board rejected his claim essentially on its adverse findings on his creditability and on relevant and undisputed COI for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 52 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 irrationality 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 to challenge the finding of the Board or any merits in his intended application.

17.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.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 5^th day of July 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