Case Document

100%Judiciary

HCAL 1198/2019

[2023] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1198 of 2019

BETWEEN
	Beyai Pa Sisawo	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 37-year-old national of The Gambia in West Africa who arrived in Hong Kong on 8 November 2016 as a visitor with permission to remain as such up to 22 November 2016 when he did not depart and instead overstayed, and on 23 November 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian army or authorities over some false charges suspected of him and/or by the families of those prisoners executed by him and his fellow soldiers in a firing squad in the line of their duties and under the order of their commander. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kabokorr, Foni Bintang-Karenai, The Gambia. After leaving school he joined the Gambian Army in 2007, married his wife in 2011, and raised a family with 2 children.

3.During his first months of joining the army, the Applicant was under the training of a Lt Colonel Lamin Sanneh in Banjul, and with whom he subsequently formed a close friendship after his completion of the training and was posted elsewhere in the country.

4.In one of his early military posts the Applicant was assigned to be a member of the army firing squad, and in August 2012 he and his squad executed 9 political prisoners at the order of the Army under the regime of then President Jammeh.

5.In December 2014 while the Applicant was posted to station in Sudan, Lt Col Sanneh who was then the head of the presidential guard led a small group of soldiers in a coup in the State House to try to overthrow the President Jammeh’s regime, but the coup was eventually crushed and Lt Colonel Sanneh was killed together with some of his coup members.

6.After the failed coup many people were arrested by the Jammeh’s government, and in March 2015 when he was posted back to The Gambia as a guard of the State House, the Applicant was at one time also detained and interrogated by the army intelligent agents due to his previous friendship with Lt Colonel Sanneh, during which he was beaten with batons, but was eventually released without charge and was able to resume his post as a guard of the State House.

7.In July 2016 while the Applicant was stationed in an army camp, some guns and weapons were stolen from the camp, and on the following day the Applicant was arrested by the military police for interrogation about the theft due to his past relationship with Lt Colonel Sanneh, during which he was detained and beaten with batons for several days, and on 29 July 2016 he was informed that he had been convicted of the offence by the military court and was given a death penalty pending execution.

8.On the night of 30 July 2016, with the assistance of his good friends in the same army camp, the Applicant managed to make his escape and fled to his home in Foni Bintang, and from there he went into hiding in the border town Majaja, and on 1 November 2016 he departed The Gambia for Senegal, and eventually arrived in Hong Kong on 8 November 2016 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 30 November 2017 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”).

10.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 Gambian Army or authorities or the family of those executed prisoners 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 of any adverse interest from any of them in the Applicant all these years since his departure of the country and which he was able to do without any problem, that his execution of those prisoners was carried out under the order of the former regime and hence would be entitled to state protection from the present government from any revenge by their families if so needed, and that reliable and objective Country of Origin Information (“COI”) show that there had been significant changes in the political and human rights situations in The Gambia since President Jammeh was defeated in the 2016 election and subsequently left the country into exile while the present regime under President Barrow has undertaken significant reforms and improvements especially in the political and human rights of the citizens that it is not accepted that there would still be any adverse interest from the current Gambian Army or authorities in the Applicant, that whatever charges he might be subjected to upon his return to the country that he would be entitled to defend them with proper legal representation and in a fair trial under the current system, and that if necessary reasonable internal relocation alternatives would also be available in The Gambia with a large population spread across a vast territory 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 where it would be difficult if not impossible for those families of executed prisoners to locate him.

11.On 8 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 November 2018 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board. On 24 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board despite some ongoing reservations over his evidence given to the Board gave the Applicant the benefit of the doubt and accepted his account of past events prior to his departure of The Gambia but found on the basis of numerous relevant COI and as acknowledged by the Applicant that there has been a change of government in The Gambia since he left the country in 2016 and with the significant resultant reforms and improvements to the political and human rights situations that it is not accepted that there would still be any adverse interest from the former corrupt regime in the Applicant or that he would face any risk of harm from anyone under the current regime of President Barrow, and that whatever adverse interest there might still be from the families of any of those executed prisoners would be negated or minimized by state/police available to the Applicant as a former soldier just carrying out his duty under the command of the Army and the former regime that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.On 6 May 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 in his supporting affirmation of the same date to which he just attached the entire hearing bundle for his appeal before the Board 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 adverse finding of any future risk as alleged for the thorough and detailed analysis and reasoning set out in paragraphs 83 – 97 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as the numerous relevant and reliable COI as to the significant changes to the government and political regime and the huge improvements in human rights situations in his home country since his departure in 2016 upon which the Board was entitled to and rightly concluded of no basis for any further fear of harm that the Applicant might face upon his return to his home country, and in the absence of any error of law 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 findings of the Board.

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of any revenge in the Applicant’s claim from the families of those executed prisoners back in 2012 which if still exists or is real would be a localized one and that it is not unreasonable or unsafe for the Applicant to relocate to other part of The Gambia, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.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.

18.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 April 2023

(Chung Lai Fan, Christine)
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^th April 2023 Beyai Pa Sisawo 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^th April 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9477/17/12/144/GA79 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2670/17 (Formerly RBCZ 10112/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)