Re Beyai Pa Sisawo

CACV 132/2023, [2023] HKCA 1011

On appeal from [2023] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 132 OF 2023

(ON APPEAL FROM HCAL NO. 1198 OF 2019)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2023[1] refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 April 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2017 rejecting his non-refoulement claim.

2.This appeal was scheduled to be heard on 8 August 2023.  Despite the directions given by the Court on 14 June 2023, the applicant failed to lodge his skeleton argument by the stipulated time.  Accordingly, the Court informed the applicant by letter dated 18 July 2023 that the hearing would be vacated and the appeal will be determined on paper, which we now do.

Background

3.The applicant is a national of The Gambia, West Africa, and of Jola ethnicity.  He arrived in Hong Kong on 9 November 2016 as a visitor and was permitted to remain until 22 November 2016.  He overstayed and surrendered to the Immigration Department on 23 November 2016.  He later raised a non-refoulement claim based on his fear that, if refouled to The Gambia, he would be harmed or killed by the Gambian army because of his connections with a lieutenant colonel named Lamin Sanneh (“Sanneh”) who led an armed attempt to overthrow the Gambian government in December 2014.  He also feared vengeance by the families of nine political prisoners against whom he had participated in their execution in 2012.  The details of his claim are set out at [6] of the Director’s Decision and summarised by the Judge at [2] to [8] of the Form CALL-1.

4.In gist, the applicant joined the Gambian army in 2007.  In December 2014, while the applicant was posted to Sudan, Sanneh led a small group of soldiers in a coup to overthrow the then Gambian President Yahya Jammeh.  The coup was defeated and Sanneh was killed along with his coup members.  The Gambian authorities suspected the involvement of the applicant and he was detained, interrogated and even beaten because of his connections with Sanneh, who was his mentor and close friend in the Gambian army.  Lacking evidence to implicate the applicant, the Gambian authorities framed him in a theft involving twelve missing guns in the army camp where he worked as a duty guard.  In July 2016, the applicant was convicted of the offence by the military court and was sentenced to death.

5.On the night of 30 July 2016, the applicant managed to escape from prison and fled to his home village in Foni Bintang with a two-hour bus ride.  He then went into hiding in the border town Majaja.  Fearing for his safety, the applicant left The Gambia on 1 November 2016 and travelled through Senegal, Mali and Ethiopia before arriving in Hong Kong on 8 November 2016.  After his arrival in Hong Kong, the applicant was informed by his brother that the families of the nine political prisoners were seeking vengeance on him as he was part of the firing squad who had executed the prisoners under army command on 24 August 2012, and because the applicant was no longer a soldier under the protection of the army.

The Director’s decision

6.By a Notice of Decision dated 30 November 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk^[2], BOR 3 risk^[3], persecution risk^[4] and torture risk^[5] grounds.  The findings of the Director were summarised by the Judge at [10] of the Form CALL-1.

The Board’s decision

7.The applicant appealed to the Board.  The Board heard the appeal at a hearing held on 19 November 2018.  By its decision dated 24 April 2019, the Board dismissed the appeal.

8.Despite some reservations on certain aspects of the evidence, the Board accepted the applicant’s account on past events.  The Board accepted that the applicant was suspected by the Gambian military of disloyalty in light of the failed coup against the former President Jammeh, and that he was subsequently framed, interrogated and sentenced to be executed by the authorities[6].

9.However, having considered the entirety of the evidence and the available country of origin information (“COI”), the Board did not accept that the applicant would face any real or appreciable risk of harm in the reasonably foreseeable future, whether from the government, the military or aggrieved family members of those executed in 2012, in the event that the applicant returns to The Gambia.  Primarily, the Board found that since the applicant left The Gambia in 2016, there was a change of government[7] resulting in significant improvements in the political and human rights situation in the country.  Based on the relevant COI[8], particularly on the pardoning of prisoners implicated in the failed coup in 2014 against the former regime, the Board concluded that the applicant will more likely be reintegrated into the armed forces instead of being scrutinised as a loyalist of the former regime[9].

10.The Board also addressed a new issue raised by the applicant at the hearing, which concerned his fear of being targeted by supporters of the new government due to his Jola ethnicity which he shares with the former President Jammeh.  Having considered the post-hearing submissions of the applicant and the relevant COI[10], the Board did not accept that the applicant would face the risk of being harmed for that reason.  Even if the applicant is related to those who may have incited violence against the new government, the Board found that the applicant would not be implicated in those activities because he was in Hong Kong at all relevant times[11].

11.As regards to the applicant’s fear of harm from the families of the executed prisoners, the Board did not accept that the applicant would face any risk of harm in this respect because his assumption that the people who visited his home held some adverse interest in him was speculative and unsupported by any independent evidence.  Further, the perceived harm would be negated by the availability of avenues such as the Truth and Reconciliation Commission for those aggrieved and seeking justice in respect of the abuses committed under the former regime, reducing the potential risk of them directly targeting the applicant[12].

12.In the circumstances, the Board did not accept the applicant would face any risk of harm as claimed if he were to return to The Gambia.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

The Judge’s decision

13.The applicant filed a Form 86 on 6 May 2019 to apply for leave to judicially review the Board’s decision.  He did not put forward any ground for seeking relief in his Form 86 or in his supporting affirmation.  He simply attached to his affirmation the entire hearing bundle of his appeal before the Board together with the Board’s decision without putting forward any ground for his intended challenge.  

14.The Judge dealt with the application on paper.  By a Form CALL-1 dated 20 April 2023, the Judge refused to give leave for judicial review and gave his reasons in [14] to [18] as follows:

“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.”

This appeal

15.In the notice of appeal filed on 2 May 2023, the applicant simply stated that he wants to challenge the decision.

16.The applicant failed to lodge any skeleton argument in support of his appeal.  No application was made by the applicant to extend the time for the lodging of skeleton argument.  As stated in the letter from the Court on 18 July 2023, the applicant is deemed to have waived his right to have an oral hearing.  Accordingly, the Court will determine the appeal on paper based on the materials before it.

Our reasons for decision

17.The general principles regarding an appeal in a non-refoulement case had been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits.  The applicant did not in his notice of appeal identify any error in the Judge’s decision or advance any ground for reversing the decision.

19.In the present case, the Board rejected the applicant’s claim as he had failed to make out a case on any future risk of harm entitling him to non-refoulement protection under any of the applicable grounds.  We agree with the Judge’s observations that the Board gave thorough and detailed analysis and reasoning at [83] to [97] of its decision, with the benefit of hearing the applicant’s evidence and his answers to questions raised of his claim.  Such findings are primarily within the province of the Board and the Judge was not entitled to intervene in the Board’s decision since no valid public law grounds had been shown.

20.Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decisions of the Director and the Board or any unfairness in the process, that the intended judicial review had no prospect of success, and that leave to apply for judicial review should be refused.

21.Accordingly, we dismiss the appeal.

The Applicant, unrepresented, acting in person.

[1]  [2023] HKCFI 1013

[2]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance.

[4]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[6]  [83] to [87] of the Board’s decision

[7]  President Adama Barrow was elected in place of the former President Jammeh

[8]  A new24.com report dated 4 March 2017 entitled Executed Gambian coup plotters exhumed (https://www.news24.com/Africa/News/executed-gambian-coup-plotters-exhumed-20170403); The Economist, 17 November 2018, The Gambia grapples with the legacy of its former dictator – A new truth commission hopes to expose past crimes (https://www.economist.com/middle-east-and-africa/2018/11/17/the-gambia-grapples-with-the-legacy-of-its-former-dictator); The WANEP report dated 25 November 2017 entitled Twelve Soldiers Arraigned Before a Court Martial in the Gambia: A Litmus-test to Restore Public Confidence in the Credibility of the Country’s Justice System (https://wanep.org/wanep/files/2017/Nov/Gambia_-_NEWS_Quick_Updates_-_Final1-2017-11-25.pdf)

[9]  [88] to [90] of the Board’s decision

[10]  [69] to [73] of the Board’s decision

[11]  [91] to [92] of the Board’s decision

[12]  [93] to [96] of the Board’s decision