Manneh Fakebba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1083/2019

[2022] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1083 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 Director’s Decision dated 30 April 2018 and the Notice of Hearing dated 9 November 2018, both of which are not amenable to judicial review and will not be dealt with here.

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 visitor on 23 September 2014 and was permitted to stay until 22 December 2014. He did not depart and had overstayed since 23 December 2014. On 2 January 2015, he surrendered to the Immigration Department. On 27 February 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 uncle Lamin Sanneh (“LS”).

5.According to the applicant, he borrowed money from LS in January 2014 for his garment business. However, he was only able to repay the interests in the first three to four months. In mid-2014 onwards, his uncle had been visiting, threatening and assaulting him for defaulting the payment. Out of fear, he fled to Hong Kong. However, upon examination at the immigration checkpoint, he mentioned that he only came to Hong Kong for a visit. While he was in Hong Kong, he was informed by his mother that LS was furious and threatened to kill him if he returned. Thus, the applicant stayed in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”) and paragraph 15 of the Board’s Decision as described below.

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 on the basis that the level of risk of harm from LS was assessed to be low. The Director elaborated that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) LS and followers did not inflict physical harms on him [14]; (iii) the dispute was private in nature [15]; (iv) it was unlikely that LS would have the resource to locate the applicant elsewhere [16]; (v) his failure to seek protection at the first available opportunity undermined his credibility [17]; (vi) state protection would be available to him [18]-[19] and (vii) internal relocation was a viable alternative [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 29 January 2019, the Board conducted an oral hearing for his appeal, during which he gave oral evidence [20].

9.The Board explored the material aspects of the applicant’s claim at the hearing [20]-[46]. The Board noticed that the applicant was vague and inconsistent in the details of his claim; for example, the sum and interest of the loan [32]-[34]. He was also vague about the alleged encounters with LS [35]-[41]. Having considered his evidence, the Board refused to accept the existence of the loan and the alleged threats or assaults from LS [45]. On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

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

11.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

12.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).

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

14.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.”

15.There is no valid reason to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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