Ceesay Gibril v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1082/2019

[2022] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1082 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant had also applied for leave to apply for judicial review of the Decision dated 22 November 2017, which is the Director’s Decision and the Notice of Hearing dated 20 September 2018, both of which are not amenable to judicial review and will not be dealt with.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Gambia. He entered Hong Kong as a visitor on 12 November 2014 and was permitted to stay until 10 February 2015. He did not depart and had overstayed since 11 February 2015. On 13 February 2015, he surrendered to the Immigration Department. On 13 March 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his parental uncle Mot.

5.According to the applicant, his father owned two plots of land. Mot was his father’s business partner and they operated a company for building materials. In 2011, his father went bankrupt due to business failure. In 2013, his father decided to move his family to live with Mot in Panchang village. Mot was unhappy with this arrangement. Thereafter, there were arguments among them. One day in 2013, his father was found dead. The applicant’s family believed that Mot was the murderer. One night in 2014, some unknown men kidnapped the applicant’s family. His mother was shot to death and his sister was raped and died subsequently. While the applicant managed to escape, he suffered mental illness. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 November 2017 by the Director (the “Director’s Decision”) and paragraphs 31 to 47 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed his claim. The Director refused to accept that he would be harmed or killed by Mot upon refoulement because (i) he was unharmed throughout the alleged incidents and his assertion of imminence of harm from Mot was not supported by evidence [18]-[20]; (ii) state protection would be available to him [21]-[23]; and (iii) internal relocation was a viable alternative [24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 October 2018, the Board conducted an oral hearing for his appeal.

9.The Board enquired the material aspects of the applicant’s claim [48]-[81]. The Board observed that the applicant gave inconsistent evidence on certain aspects, such as whether Mot and his father were business partners [54]-[60]. He was vague about the details of the house they moved in with Mot [61]-[67]. It also cast doubt as to the ownership of the subject land after the death of the applicant’s father [77]-[81]. As a result, while accepting that the applicant’s family suffered financial difficulties, the Board found that, given the applicant’s academic background, it was implausible that he failed to give any details about his father’s business collapse [84]. It also found that the applicant had changed his accounts in relation to the business relationship between his father and Mot [85]. Further, the applicant’s stories about Panchang village was vague and illogical [87]-[92]. In addition, the Board rejected his stories about the alleged incidents and his subsequent travel to Hong Kong as they were not credible [93]-[102].

10.For the aforesaid reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant enclosed the Board’s Decision and the hearing bundle without setting out any specific ground.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board had given its reasons to cast doubt on the applicant’s factual story. See paragraph 9 above. There is no valid reason to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 31^st day of May 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