Cham Sulayman v. Torture Claims Appeal Board

HCAL 183/2019

[2022] HKCFI 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 183 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 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of The Gambia who arrived in Hong Kong as a visitor on 29 August 2014 with permission to remain up to 27 November 2014 when he did not depart and instead overstayed, and on 5 December 2014 he surrendered to the Immigration Department and subsequently raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian government arising from his claimed relationship with a paternal uncle involved in a failed coup to overturn the government.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Serekunda of The Gambia.  After leaving school he was sent by his parents to live with his paternal uncle and his family in Brusibi. He worked in the sales and marketing field in Serekunda.

3.The Applicant claimed that his uncle was Colonel Ndure Cham, the then Army Chief of Defense who in 2006 was accused of attempting a coup to overturn the then dictator and President Jammeh’s government, but managed to escape and went into hiding until August 2013 when he was eventually arrested, and while the Applicant had never been involved in the failed coup, he was arrested and detained by the police on seven occasions for lengthy interrogations but was always released thereafter without charge, and to avoid any further harassments from the police, the Applicant on 19 August 2014 departed the Gambia for Senegal, and from there he travelled to China, and on 29 August 2014 he arrived in Hong Kong where he overstayed, and after a removal order was issued against him by the Immigration Department on 20 October 2015, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

4.By a Notice of Decision dated 13 October 2017 the Director of Immigration (“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 Gambian government upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from the Gambian government, that the Applicant’s claimed connection with Ndure Cham was doubtful in the absence of any reliable evidence that they were related, that in any event there is no evidence that the Applicant was a target of The Gambian government prior to him leaving the country which he was able to do without any problem, and that reliable and objective Country of Origin Information (“COI”) show there have since been significant political changes to The Gambia after then dictator and President Jammeh was defeated in the December 2016 election and had fled the country, that the newly elected President Barrow has since ordered reforms of the government, promoted freedom and democracy in the country, issued presidential pardon to and reinstated many of the former military personnel under Ndure Cham back into the military, and has set up a Truth and Reconciliation Commission to investigate abuses committed under former President Jammeh and to make appropriate reparations for victims that it would be safe for the Applicant if he is indeed related to Ndure Cham to return to The Gambia without any risk of harm from anyone or for him to relocate to other part of the country away from his home district without any risk of being located or to avoid any of his claimed threat which emanated from his claimed connection with Ndure Cham that his claim for non-refoulement protection failed on all applicable grounds.

6.On 24 October 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 24 August 2018 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 3 December 2018, his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found no reliable evidence in support of the Applicant’s claimed relationship with Ndure Cham and his lack of any knowledge or information of Ndure Cham’s immediate family that it suspected that he had tried to write himself into the story of Ndure Cham and his failed coup to create a basis for his non-refoulement claim, that his credibility was further undermined by his failure to raise his claim at the first opportunity of his arrival in Hong Kong until more than one year later and only after a removal order had been made against him, that by giving him the benefit of the doubt that he is indeed related to Ndure Cham that he had never been charged by the Gambian government notwithstanding his alleged arrests and interrogations by the police, that his claimed fear was at the highest based on Ndure Cham’s role in the attempted coup of the former presidency and government of Jammeh but not his own that there is no evidence that he has been targeted by the Gambian government up to the time when he left the country without any difficulty, that according to the relevant COI that all of Ndure Cham’s relatives arrested after his failed coup have since been released without charge which suggests that the Applicant is no longer of any interest to the Gambian government, and that the former regime of President Jammeh which Ndure Cham was opposed to has since been voted out of power in December 2016 and replaced by the present one led by the elected President Barrow with the new and democratic reforms brought to the present government as well as with the passage of time since the Applicant left the country that it concluded that there is not a real risk that he will face any of the proscribed harm from the Gambian authorities upon his return to The Gambia that his claim for non-refoulement protection failed on all the applicable grounds.

8.On 21 January 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit he just stated that he is not satisfied with the decision as he still has problem in his home country that he wants to stay in Hong Kong to save his life but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such 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 for his intended challenge. 

9.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.

10.In the Applicant’s case, the Board rejected his claim on its correct and reasoned findings of no real risk of any harm from the present Gambian government arising from his claimed relationship with Ndure Cham in a failed coup years ago against the former government for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 38 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.       

11.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. 

12.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 7^th day of January 2022 

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