Sanneh Ebrima v. Torture Claims Appeal Board

HCAL 402/2019

[2022] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 402 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 last arrived in Hong Kong on 28 September 2014 as a visitor with permission to remain up to 27 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 supporters of the ruling political party Alliance for Patriotic Reorientation and Construction (“APRC”) and the Gambian police and authorities as he supported the opposition party United Democratic Party (“UDP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Serekunda, The Gambia. After leaving school he worked as a construction worker in his home district, and supported UDP in their protests and activities against the opposition party APRC and the government.

3.During the 2001 general election, while the Applicant and his fellow UDP supporters were staging a demonstration, they were attacked by a group of APRC supporters which turned into a mass brawl between the two groups, and during the chaos some UDP supporters broke into the house of a prominent Member of the Parliament in the neighbourhood and vandalized the property, but the Applicant was not involved as he had already fled from the scene to avoid the arriving police.

4.However, shortly after the incident the police arrested many of the UDP supporters including the Applicant who was then interrogated by the National Intelligence Agency (“NIA”) agents over the vandalism of the MP’s property, during which he was beaten with batons, and was only released the next day after his family had put up bail for him.

5.The Applicant was subsequently never charged by the police for the incident, but he decided to keep a low profile to avoid further problems from the authorities and the APRC supporters after APRC won the election and their leader Jammeh became the president.       

6.For the next 10 years or so the Applicant had not met with any problem with the APRC people or the Gambian authorities, but one day in late 2013 he drove his car into a prohibited section of the road to make way for President and his entourage to pass through, and when the police tried to stop him, the Applicant just drove away, but when the police subsequently came to his home looking for him, the Applicant feared that he would be arrested or implicated by the previous vandalism incident in 2001, he therefore fled from the country into neighbouring Senegal.  

7.After staying in Senegal for 6 months without incidents, the Applicant on 24 June 2014 departed for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 13 May 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”).

9.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 APRC people or the Gambian police or NIA 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 is no evidence that he had been specifically targeted by the APRC people or the Gambian authorities when he was able to live his life normally without any incidents after the vandalism incident in 2001 for more than 10 years until a minor traffic violation in 2013 which would not lead to any serious consequences that there is no good reason for him to flee his country for Hong Kong as claimed, that reliable and objective Country of Origin Information (“COI”) show that since his departure there have been significant political changes to the Gambia after the former dictator and President Jammeh was defeated in the 2016 general election and had fled the country into exile, and that elected President Barrow had brought important reforms to improve the government’s administrations and the country’s human rights situation including the release of former political prisoners and prosecutions of former government police and NIA officials involved in corruptions and human rights abuses that it concluded of no real risk of any harm from anyone to the Applicant upon his return to The Gambia, and that if for whatever reason that the Applicant still fears of any harm from the APRC people that state/police protection would be available to him upon his return to The Gambia as well as reasonable internal relocation within the country 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 him to be located.

10.On 23 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider 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”), and in the absence of any such additional information from him, the Director by a Notice of Further Decision dated 22 February 2017 also rejected his BOR 2 Claim upon finding that the facts of his case did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to The Gambia.

11.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 appeal which was filed on 20 May 2016, and for which he attended an oral hearing on 7 November 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 26 November 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board accepted the Applicant’s claim of past problems with the APRC people and the police/NIA, but found such significant changes since he left the country brought by the newly elected President Barrow’s government to the governance and justice framework of the country by putting various human rights reforms, respect for the rule of law, freedom of expression and other democratic principles at the heart of their mandate as well as important changes to the police and security system including the disbandment of NIA that it does not accept that there would still be any adverse interest in the Applicant or that he would face any real risk of suffering any of the proscribed harm from anyone inside or outside of the Gambian authorities upon his return to The Gambia that his claim for non-refoulement protection failed on all the applicable grounds.   

13.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 affidavit of the same date he merely repeated his claim as before that due to the political situation in The Gambia that his life is in danger if refouled to 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.

14.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.

15.In the Applicant’s case, the Board rejected his claim essentially on its factual findings based on reliable COI and for the detailed analysis and reasoning set out in paragraphs 40 – 75 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.               

16.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.

17.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 28^th 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