Njie Lamin v. Torture Claims Appeal Board

HCAL 388/2019

[2022] HKCFI 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 388 of 2019

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 35-year-old national of The Gambia who arrived in Hong Kong on 9 February 2015 as a visitor with permission to remain up to 10 May 2015 when he did not depart and instead overstayed, and on 12 May 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 Gambian authorities due to his past involvement in human rights activities in the country. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Jambur, Western Division, Serrekunda, the Gambia and raised in Pipeline, Serrekunda, the Gambia. After leaving school he together with some friends founded a charitable organization called Youth Alliance The Gambia (“YATG”) providing community services for the local youth and promoting human rights, and later became an activist and attended international forums and conferences on human rights in various countries.

3.In November 2013 while he was attending a conference known as World Youth Forum in Senegal, he heard that the Gambian police had come to his home looking for him and had detained his father when they could not find him, and so he together with two of his fellow YATG members rushed back to the country, whereupon they were arrested at the border by officers of the National Intelligence Agency (“NIA”) and were detained at their office in Banjul where the Applicant was interrogated about his participation in the forum in Senegal, during which he was beaten with batons and other objects that he suffered cuts and bruises all over his body, and that he was also deprived of food and water during his detention until 2 days later when he was released on bail with requirement to report back to NIA on a regular basis.

4.Upon returning home, the Applicant was advised by his parents and friends to leave the country for his own safety, and so on 8 November 2014 he departed for Senegal where he met a group of fellow Gambians who were planning to return to the country to overthrow the government, but the Applicant did not join them and instead remained in Senegal, but later when he heard that their coup had failed after their plan had been leaked to the Gambian government, the Applicant became fearful of being implicated and felt it was not safe to remain in Senegal, and so on 1 February 2015 he departed for China, and from there he later travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reliable evidence that he had been targeted by the Gambian authorities due to the low intensity and frequency of past ill-treatment from them and the fact that he was able to leave the country without problem, that in any event based on reliable and objective Country of Origin Information (“COI”) that the Gambian government has since undergone significant changes and reforms after former dictator President Jammeh was defeated in the 2016 election and had gone into exile, while the elected President Barrow has since implemented various reforms in matters such as democracy and human rights for the Gambian people with law to guarantee human rights and freedom as well as the release of political prisoners and activists and the prosecutions of former NIA and government officials involved in abuses and corruptions in the past that it is not accepted that the Applicant would still face any risk of being harmed or killed by the authorities or any other persons upon his return to The Gambia, and that for whatever reason that he may still have any fear of returning to his home district, reasonable internal relocation is permissible within the country with a large population of 2 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 Gambia away from his home district without any risk of being located by his perceived enemies.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found multiple inconsistencies and implausibilities in the Applicant’s evidence including errors in the documents provided by him and the inconsistencies between his claims and available COI as well as his vague and non-persuasive explanations to questions raised of the above issues that the Applicant was not considered as a credible witness or that he had ever been a human rights activist or that he had been arrested, detained, interrogated or tortured by the NIA as a result or that he left the country for fear of harm of the NIA or the Gambian authorities as alleged, and that while he might have been interested in human rights and youth rights in those days back in The Gambia, the fact is that according to relevant COI the Gambian government has since changed significantly with improved human rights situation under President Barrow that it is not accepted that the Applicant will face any real risk of the proscribed harm from the Gambian government or authorities upon his return to The Gambia that his claim for non-refoulement protection failed on all the applicable grounds.      

9.On 12 February 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 affirmation of the same date he just stated that he is not satisfied with the decision because his life is still not safe in his home country but without putting forward 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.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility and the significant changes in the government and human rights situation in his home country since his departure years ago on the basis of reliable COI and for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 44 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 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.  

12.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.

13.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 22^nd day of April 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