Jallow Demba v. Torture Claims Appeal Board

HCAL 1118/2020

[2023] HKCFI 3015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1118 OF 2020

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 53-year-old national of The Gambia 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 on the basis that if he returned to The Gambia he would be harmed or killed by the National Intelligence Agency (“NIA”) of The Gambian Government for refusing to cooperate with them in their plots to convict leaders and members of the opposition political parties. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Tabanani, Lower River Region, The Gambia. After leaving school he worked as a meter recorder for the electricity company and then a supervisor in a construction company, got married and raised a family with 5 children in his home village.

3.In 2008 he started to work as a court interpreter for the Gambian judiciary as many of the judges were foreigners from neighbouring Nigeria, Ghana and Cameroon who did not understand the local Gambian languages and dialects and required the use of court interpreters.

4.In April 2016 a number of important members of an opposition political party were arrested by the Gambian authorities and tortured in prison that some had subsequently died while under police detention, which then sparked off massive protests against the government then headed by the dictatorship of former President Jammeh.

5.As a result more arrests were made by the government including many opposition political leaders who were then put before the court for trials, and for which the Applicant was approached by some NIA agents one day in September 2016 with a plan to make wrong or incorrect interpretations to the foreign judges during the trials of these opposition leaders to ensure that they would be convicted and put in prison for lengthy terms, and when the Applicant refused to cooperate with them in their plots, those NIA agents then threatened that if those men were not convicted, the Applicant would be killed.              

6.Thereafter the Applicant became fearful for his life, and on the next day he fled to Dakar in Senegal to seek help form some influential friends who advised him to leave the country for Hong Kong to seek asylum protection, and so he returned to The Gambia to make the necessary arrangements, and on 6 November 2016 he departed The Gambia for Senegal, and eventually arrived in 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 12 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”), during which the Applicant also raised an additional risk of revenge against him by the families of those opposition leaders and politicians who might blame him for their convictions and imprisonments since the collapse of the former government and the subsequent exile of President Jammeh in 2017.             

7.By a Notice of Decision dated 29 May 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”).

8.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 NIA agents or the families of those convicted opposition leaders 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 that any of them has ever had or would still have any adverse interest in him after all these years since he left the country other than his own speculation, that relevant reliable and objective Country of Origin Information (“COI”) show that the former dictatorship government had collapsed after President Jammeh lost the general election in December 2016 and then went on exile in 2017 and with elected President Barrow bringing democracy and reforms to the country that it is not accepted that the Applicant would still face any real risk of harm from the former authorities or the NIA or any of the families of the previously convicted prisoners upon his return to The Gambia, that in any event state protection would be available to the Applicant if resorted to as well as reasonable internal relocation alternatives also 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

9.On 11 June 2018 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 13 December 2019 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 and with submissions made on his behalf by his lawyer. On 21 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of threats from the NIA agents over his refusal to cooperate with them in their plots against the arrested opposition leaders in their trials but found no evidence that they had any adverse interest in him given that he was able to leave and return to the country without any problems or that there would still be any adverse interest in him after all these years since he left the country, nor is there any evidence of any real risk of harm of revenge from families of convicted opposition leaders against the Applicant other than his own speculation, that in any event relevant COI show that after the election defeat and exile of former President Jammeh and with the collapse of his dictatorship government and the subsequent reforms and democracy brought by the elected President Barrow to the country that it is not accepted that the Applicant would still face any real risk of harm from the former government or authorities including the NIA upon his return to The Gambia, and that state protection would be available to him if needed as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 8 June 2020 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 a copy of the decision but without putting forth any proper ground for his intended challenge. 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.

12.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.

13.In the Applicant’s case, the Board rejected the Applicant’s claim for the very thorough and detailed analysis and reasoning as set out in paragraphs 80 - 128 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.  

14.The fact is that it has also been established by the Director in his decision that the risks of harm in the Applicant’s claim if real are localized and that it is not unreasonable or unsafe for him 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.                

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.Moreover, the Applicant on 22 September 2023 filed an affirmation requesting to “cancelled” his application but without stating clearly the reason therefor.

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 request to cancel his application, I accordingly dismiss his leave application.

Dated the 20^th day of November 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