Barrow Lamin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 898/2019

[2022] HKCFI 1217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 898 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 the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 30 January 2019 (the “Decision”). 

2.The Applicant is a national of The Gambia, now aged 35.   He entered Hong Kong on 12 October 2014 and was permitted to remain as a visitor until 10 January 2015. On 12 January 2015, he surrendered to the Immigration Department.  Then, he lodged his claims for non-refoulement protection on 23 January 2015.

3.In due course, his non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 2 Risk[2], BOR 3 Risk[3]; and Persecution Risk[4]. By his Notice of Decision dated 11 May 2017, the Director rejected his claims on all grounds. The Applicant appealed the decision in the Notice.  His appeal was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision. 

4.The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.The following is a summary of the Applicant’s case mainly based on the information in the Non-Refoulement Claim Form prepared by the Applicant (the “NCF”) with the assistance of the Duty Lawyer Service and the record of his screening interview which he attended with legal representation.  He was legally represented in the two screening interviews.

6.The Applicant was born in Tallinding, The Gambia.  According to the Applicant, his father bequeathed a house and land in Tallinding (the “Family Home”) solely to him, thereby disinherited his elder brother who had become an alcoholic and was banished from the Family Home in 2009 by his father.  In around 2010, he inherited the Family Home upon his father’s death.  Then he sold the Family Home for 400,000 Gambian Dalasi (about HK$63,000) with a view to set up a business.  He went to live with a friend.

7.One morning in 2014 he bumped into his elder brother in the street.  They had an argument about his sale of the Family Home which ended up in a fight lasting for five minutes.  During the fight, his brother threatened to kill him if he did not give his brother a share of the proceeds of the sale of the Family Home.  The Applicant did not suffer any serious injuries.

8.On the same day, the Applicant made a report of the incident to the police.  He was subsequently informed by the police that his brother was arrested.  But two weeks later, the Applicant’s uncle told him that his brother had been released on the day of his arrest.  His uncle suspected that his brother had paid a bribe to secure his release.  His uncle advised the Applicant to go to Dakar in the neighbouring state of Senegal.  The Applicant went to Senegal and stayed for several months.  For fear that his brother could locate him and harm him, the Applicant flew to Guangzhou on 23 September 2014.  Then he flew to Hong Kong on 12 October 2014.

Finding of the Board

9.The Board accepted the Applicant’s account and that he was in fear of harm at the hands of his brother arising from the dispute over the proceeds of sale of the Family Home. However, it was not persuaded that the threat uttered by his brother amounted to anything more than a wild and angry outburst in the heat of the moment.  The Board therefore found that the threat did not constitute a real and personal threat of serious harm or a real death threat against the Applicant.

10.Applying the law applicable to the four grounds under the USM, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM and dismissed his appeal.

The applicable legal principle

11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds of application

12.The Applicant’s ground for judicial review as stated in his Form 86 which was repeated in his supporting affirmation is that the Board did not carefully consider his situation and that there is a real threat on his life if he returns to The Gambia.  He is disputing the finding of fact by the Board.  He did not advance any reasons or argument as to what is wrong with the Decision. He cannot complain about the primary finding of fact by the Board as the Board accepted his evidence in total.  He only disputed the Board’s secondary finding of fact that on the basis of the Board’s primary finding of fact, he had failed to discharge the burden of proving his entitlement to non-refoulement protection under any of the applicable grounds under the USM.  This is a mixed question of fact and law.  Absent any particular grounds for application, the court could only focus on errors of law, procedural unfairness or irrationality in the Decision.

Discussion and conclusion

13.This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review.  As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board accepted the Applicant’s evidence in total.  But even on that evidence, it found he had failed to prove the factual basis to support of his case.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

14.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated 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