Jabbie David v. Torture Claims Appeal Board

HCAL 36/2023

[2023] HKCFI 1974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 36 OF 2023

BETWEEN

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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of The Gambia who arrived in Hong Kong on 3 April 2016 as a visitor with permission to remain as such up to 8 April 2016 when he did not depart and instead overstayed, and on 11 April 2016 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 the Muslim community and/or the Gambian police and authorities for being homosexual. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Tanji, Serrekunda, The Gambia where his father was a pastor. After leaving school he continued to live with his parents in his home district, and worked various jobs to make his living.

3.One night in 2004 and at the age of 15, while on his way to town, the Applicant was abducted by several men and taken to an empty house where he was raped, and before he was released, he was warned by those men at knife point that they would kill him if he reported the rape to the police.

4.Upon returning home the Applicant did not inform his parents of his ordeal as he was scared and ashamed, and on the following day he went to stay in a friend’s place in the Laettukunda area and hanged out at the Senegambia Hotel and the beach in Serrekunda where he met a man from America with whom he subsequently formed a homosexual relationship.

5.In 2005 the Applicant returned to his home in Tanji to get his things, but was kicked out by his father for being homosexual and was disowned by the family, and so he left and returned to the neighbourhood of the Senegambia Hotel, but as he no longer had any financial support from his father, he therefore had to work in whatever jobs that he could find, including as a male prostitute.

6.One day in October 2015 he was arrested by police for being a male prostitute and was detained at the Banjul prison during which he was beaten and raped by some police officers, but several days later with the assistance of a sympathetic police officer the Applicant managed to make his escape from the prison and left the country for neighbouring Senegal.   

7.With financial assistance from his brother, the Applicant then departed Senegal on 16 March 2016 for China, and from there he later travelled 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 14 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.By a Notice of Decision dated 25 April 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and rejected the credibility of his claim of being homosexual or of any risk arising therefrom due to numerous inconsistencies discrepancies and implausibility of his accounts of events claimed to have occurred prior to his departure of his home country for Hong Kong, that there is no reliable evidence to support his bare assertions of being a homosexual man or of any homosexual behavior in the past, that even on his own admission of always had been a heterosexual man with a girlfriend that it is not accepted that he is homosexual, that his claims of being raped by men including police officers and subsequently managed to escape from prison were incredible and implausible, that even if he had indeed been raped and worked as a male prostitute that there is no medical evidence that it would cause him to become homosexual, and that even if he were indeed a homosexual that reliable and objective Country of Origin Information (“COI”) show that even though The Gambia have criminalized homosexual activities punishable with lengthy imprisonment that such prosecutions have rarely been carried out since the election of the new democratic President Barrow in 2016 and with his human rights reforms in the country that it was not accepted that the Applicant would face any such risk or any harm under any of the applicable grounds upon his return to The Gambia.

10.On 9 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended two oral hearings on 12 July 2019 and 1 June 2022 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as submission made on his behalf by his lawyer. On 26 October 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence and in the absence of any medical or other evidence in support of his claims of being a homosexual man or having behaved or engaged in homosexual activities that it did not consider him as a truthful witness that he had fabricated the entirety of his claims to fear harm in The Gambia due to his alleged homosexual activities that caused him to leave his country to come to Hong Kong, and concluded that the Applicant had failed to establish that he will face any risk of any harm from anyone upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 10 January 2023 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 other than just a bare assertion that the decision was not made correctly that it was substantially unfair but without providing any details or particulars or elaboration as to how it was so, 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.

13.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 vDirector of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 108 - 152 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 submissions from his lawyer before the Board, 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 finding of the Board.  

15.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.

16.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems have been solved and that he has obtained his dependent visa but without providing any further supporting details or documentary evidence.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation no further problem in his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of August 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