Sanneh Madi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 775/2019

[2023] HKCFI 1157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 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 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested a hearing for his application. However, he was absent on the hearing date on 9 November 2022. His application is therefore dealt with on the papers.

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

The applicant

4.The applicant is a national of Gambia. He entered Hong Kong as a visitor on 9 June 2014 and was permitted to stay until 7 September 2014. However, he did not depart and had overstayed since 8 September 2014. On 24 September 2014, he surrendered to the Immigration Department. On 19 November 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Alliance for Patriotic Reorientation and Construction (“APRC”) and the United Democratic Party (“UDP”).

5.According to the applicant, he was a supporter of the APRC and was responsible for promoting the party. In around 2011, one of his uncles, who was also a supporter of APRC but did not hold any position, told him to join a rally. During the rally, they got into a fight with the members of UDP, leading to a death of a UDP member. In the same year, there was a presidential election, in which the leader of the APRC, president Jammeh was elected. In around the end of 2013, and early 2014, both his uncles, supporters of APRC, went missing. As president Jammeh was known for randomly executing people who he believed were traitors, the applicant decided to report his uncles’ disappearances to the national intelligence agency. In around March 2014, some unknown men attempted to kidnap the applicant. He believed that they were sent by Jammeh due to his attempt to probe into the missing of his uncles. Out of fear, the applicant eventually fled to Hong Kong. While in Hong Kong, he learnt that the UDP members were looking for him. His father passed away due to their harassments and his brother was also attacked by them. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 May 2018 by the Director (the “Director’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 the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments from the members of APRC and UDP indicated a small future risk of harm [13]; (ii) the threats from them, if any, were localized [14]; (iii) the past ill-treatments failed to attain a minimum level of severity [15]; (iv) state protection would be available to him [19]-[22]; and (v) internal relocation was a viable alternative [23]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board held an oral hearing for his appeal on 22 February 2019.

9.The Board recapped the applicant’s claim and his personal background. Having considered the evidence, the Board found that the claimed fear of harm was based entirely on speculation and conjecture [41]. It considered that there was no evidence suggesting that the APRC would be after him after his complaint about the disappearance of his uncles; that he was a target of the president of the Gambia [42]; there was also no evidence about his brother’s attack in 2017 and it was pure speculation that the family members of the deceased UDP member would target him [43]. The Board further concluded that the applicant would not face similar risks due to the long lapse of time; that he was able to hide in different places unharmed; that the members of APRC and UDP were simply not interested in pursuing him; that he did not suffer injuries that attained a minimum level of severity; and that the state could offer protection [44]; [51]-[59]. In any event, internal relocation was a viable option [82]-[86].

10.In light of the aforesaid findings, the Board rejected the applicant’s 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 20 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said that he was being detained in the Castle Peak detention centre and he would be able to supply documents upon his release. He did not set 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 assessed his evidence and rejected his claims with reasons. There is no valid reason from the applicant 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 4^th day of May 2023

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