Case Document

100%Judiciary

HCAL 900/2019

[2023] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 900 of 2019

BETWEEN
	Jatta Lamin	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 33-year-old national of The Gambia who arrived in Hong Kong on 5 August 2014 as a visitor with permission to remain as such up to 3 November 2014 when he did not depart and instead overstayed, and on 4 November 2014 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 some land buyers due to disputes over their property transactions and/or by the manager of a local football club over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Busumbala, The Gambia. After leaving school he assisted in his father’s real estate business which he took over in 2009 by acquiring lands in his home district and later selling them at higher price for profits, and in 2011 he also played professional football for a local football club.

3.In 2013 he was tricked into buying some lands without real titles which he then sold to some customers, but when it was later revealed that those lands did not have real titles, he was demanded by his customers to refund their money, and when he was unable to do so, they made death threats against him that he fled from his home to hide in Brikama.

4.One day in October 2013 he was asked by the manager of his football club to keep a bag containing the team’s salary while the team was undergoing training and which he placed in his home, but later when he returned home to discover that his home had been burgled and that the bag was stolen, and when he informed his manager of the same, he was accused to have stolen the money by his manager who then called the police to arrest him, and while in police detention the manager and some of his fellow players approached him and threatened to kill him if he failed to return the money.

5.With the assistance of some police officers the Applicant was eventually able to make his escape from detention, and on 15 May 2014 he departed The Gambia for Senegal, and from there he later flew to China and then 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 4 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 6 July 2018 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”).

7.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 his perceived enemies upon his return to The Gambia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay them their money, that in any event his problems with them were all private monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia 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 country away from his home district in large cities such as Bass Santa Su where it would be difficult if not impossible for anyone to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and dealt with it in the absence of the Applicant and on paper, and on 4 March 2019 it dismissed his appeal and confirmed the decision of the Director.

9.In its decision the Board did not take any issue with the Applicant’s account of events which occurred to him in his home country prior to his departure to warrant any oral hearing for his appeal, but found on the factual basis of his own case that his problems with those land buyers and his former football team were all private monetary disputes between them without any official involvement that state/police protection would be available to the Applicant upon his return to The Gambia as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 2 April 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 or affirmation, 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 the 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.

11.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.

12.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is of private nature and a localized one, and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.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 20^th day of February 2023.

(FUNG Chui-shan)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 February 2023 Jatta Lamin Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 February 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12572/18/7/322/GA113 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1345/2018 (Formerly RBCZ 10090/2015) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)