Kawsu Bajinka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 973/2020 on BabelCite. This High Court CFI judgment was delivered on 10 January 2024.
1. This is the Applicant’s application by Form 86 filed on 22 May 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 22 August 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 December 2017 (the “Notice”). The Court’s enquiries revealed that the Board had not made any d
Cites 3 cases
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HCAL 973/2020 [2024] HKCFI 154 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 973 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 22 May 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 22 August 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 December 2017 (the “Notice”). The Court’s enquiries revealed that the Board had not made any decision relating to the Applicant on that day, but had made one on 22 August 2018, a year earlier. Hence, the Court considered the date on the Form 86 is a typographical error. Leave is therefore granted to amend the date of the Decision in respect of which relief is sought to 22 August 2018. 2.An oral hearing on 15 November 2023 was scheduled for the Applicant while he was detained in Castle Peak Bay Immigration. He did not appear at the hearing as he was admitted to hospital. The hearing was adjourned to 8 December 2023. He was released from custody after he was discharged from the hospital. Notice of hearing was sent to him by post to his last known address provided by the Immigration Department, presumably upon his release from Immigration detention. It has not been returned through the course of mail. There is nothing to suggest he has not received the notice. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that his leave application may be justly determined on paper without an oral hearing. 3.The leave application was filed more than one year and nine months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than one and half years out of time. Extension of time for filing the leave application is required. 4.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton NPJ. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay. As he did not give any explanation for the delay and deprived himself of the opportunity to explain by not attending the hearing,the Court will not grant him extension of time to file the leave application. However, out of abundance of caution, the Court also assessed the prospect of success in the proposed judicial review. 5.The Applicant is a Gambian national. He entered Hong Kong on 16 June 2014 as a visitor and was permitted to remain until 14 September 2014. He overstayed and was arrested on 23 September 2014. On 26 September 2014, he raised a non-refoulement claim. 6.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim was rejected by the Director’s Notice. He appealed the Notice but did not attend the oral hearing scheduled for him on 20 November 2018. In reply to the Board’s request for explanation, he explained that he did not attend the hearing owing to diarrhoea, but provided no medical evidence in support. The Board considered the Applicant’s failure to attend the hearing, to alert the Board of his absence and to provide an explanation on his own initiative significant. It adopted the three stage approach laid down by the English Court of Appeal in The Secretary of State for the Home Department v Begum[7] for considering whether to hold another hearing. Having regard to the principles that litigation must be conducted efficiently and at proportionate cost and that compliance with rules and practice directions must be enforced, the Board considered it expedient to assess the Applicant’s claim on paper on the basis of the case as he asserted and the available country of origin information (“COI”). On 22 August 2018, the Board issued its Decision affirming the Director’s decision in the Notice. The Applicant now applies for leave to apply for judicial review of that Decision. The Applicant’s case 7.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he would be harmed or killed by the former President of Gambia, Yahja Jammeh (“Jammeh”) and the families of the victims killed on Jammeh’s order because he is a family member of Jammeh’s agent who had committed human rights abuses on behalf of Jammeh. 8.The Applicant, now aged 34, was born in Nema Kunku, Gambia. He received thirteen years of education and had worked as a part-time receptionist at a hotel in Gambia. He had no connection with Jammeh but claimed that some of his family members had. His brother Kalifa Bajinka was Jammeh’s bodyguard for four years. His cousin Sanna was Jammeh’s right-hand man. His other cousin Sul Mane Sambu was a military officer who was accused of killing the opposition leader. 9.In 2006, Kalifa was accused of attempting to overthrow Jammeh’s government which caused him to flee to the US. Around the time of Kalifa’s escape, the Applicant’s two other brothers and four cousins were arrested by the Gambian government. Upon learning about the arrests, the Applicant escaped to Brikama and then fled to Senegal on 16 June 2006. 10.In Senegal, the Applicant stayed with his friend in Ziginchor for approximately two to three months before moving to live with his cousin in Keur Massar. He stayed there for about eight years from 2006 to June 2014. However, due to his financial difficulties, his concerns about being sent to prison and the human trafficking activities in Senegal, he left for Hong Kong. 11.He claims that even though Jammeh is no longer in power, it is still unsafe for him to return to Gambia. This is because the Gambian government might still want to arrest him and the families of those who were killed on the orders of Jammeh might associate him with the killings and revenge on him. He has also been advised by his family that it would be unsafe for him to return. The finding of the Board 12.The Board noted that the Applicant did not seek protection immediately after arriving in Hong Kong but only did so after his arrest. On his own account he was also able to reside in Senegal for eight years without problem. It therefore attached no credence to his claim about entering Hong Kong to seek international protection. 13.The Board further held that even if his claim were true, he would not face any risk of harm upon his return because of the improvements in the political situation in Gambia after his arrival in Hong Kong. On the basis of authoritative and credible COI, in particular the 2016 Amnesty International Report on Gambia and the 2017 Country Report on Human Rights Practices published by the Department of State of the United States, it noted that the candidate of a coalition of seven political parties, Adama Barrow, defeated Jammeh on 1 December 2016. Though Jammeh refused to accept the election result, Barrow was successfully sworn into office on 20 January 2017 and Jammeh flew into exile on 21 January 2017. Later, the United Democratic Party won the majority of the contested seats in an election that was considered by many to be free and fair. 14.The Board noted that the democratic transfer of power resulted in significant positive changes in the human rights climate in Gambia, such as the release of political prisoners, the re-evaluation of the law concerning sedition, defamation and false publication and the establishment of an independent National Human Rights Commission. The Board held that “the political situation in Gambia has changed to the extent that the factual matrix on which the [Applicant’s] claim is based is no longer relevant”. 15.Taking into account the COI mentioned above, the Applicant’s profile and the fact that he had not been ill-treated in Gambia (though his brothers and cousins were arrested), the Board found it unlikely that he would be at risk on his return to Gambia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found he had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice. The legal principles applicable to judicial review 16.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8]. Grounds for judicial review 17.The Applicant put forward the following grounds of judicial review in his Form 86:
18.The Applicant’s complaints are directed at the Director and the Adjudicator of the Board. For his benefit, it is assumed that all the complaints are directed at the Board which is the decision-maker. Ground (1) – The Decision is wrong, unreasonable and unfair 19.This is a broad and un-particularised allegation. It will be covered in the Court’s analysis of his other particularised complaints of unreasonableness, procedural unfairness and irrationality and in the Court’s overall assessment on these matters. Ground (2) – Failure to consider state acquiescence 20.The Board did not deal with the issue of state acquiescence for the simple reason that such issue did not arise. On the Applicant’s case, Jammeh in his position as the president of Gambia committed numerous human rights abuses. The inference that such abuses were committed with state acquiescence may be readily drawn. The Board would not have overlooked such obvious matters. But that was the position at the time when the Applicant fled Gambia in June 2006. However, Jammeh, who is the Applicant’s source of harm and risk, had fled the country in January 2017. At the time of hearing before the Board, another 19 months lapsed. According to the post-2016 COI considered by the Board, democracy has been restored and human rights respected in Gambia. Persecution and human rights abuses are now things of the past. Under such political climate, state acquiescence in such human rights abuses may not be readily drawn. As the Board held, “the political situation in Gambia has changed to the extent that the factual matrix on which the [Applicant’s] claim is based is no longer relevant”. The Applicant has no evidence about human rights abuses and state acquiescence today. He has adduced no COI contradicting the ones considered by the Board. His allegation about state acquiescence today is speculation based on his knowledge about Gambia before 2017, which has no bearing on the present situation in Gambia. There is no factual basis in support of this ground of application. Ground (3) – Failure to properly consider COI 21.The Applicant complained that the Board acted unreasonably and procedurally unfairly by placing too much reliance on the COI (presumably meaning the post-2016 COI), and failed to take his personal background and experience into account. For reasons as explained in the above paragraph, only the post-2016 COI are relevant. The Applicant has not adduced any post-2016 COI which contradict those referred to by the Board. There is no factual basis to support this ground of application. Ground (4) – Failure to take such argument into account or give it enough weight properly 22.By “such argument”, the Applicant must mean his arguments mentioned under this ground, ie argument about corruption and incompetency of the administration in Gambia and reports compiled by various human rights organizations in support of his allegations. These arguments are based on pre-2016 COI. For the same reasons as mentioned in Paragraphs 20 and 21 above, there have been significant changes in the political scene and the administration since Jammeh’s departure in 2017. Hence, the COI and reports about the situation in Gambia before 2016 is no longer relevant. The available COI after 2016 taken into account by the Board are not supportive of the Applicant’s claim. There is no substance in this ground. Ground (5) – Breach of the high standard of fairness 23.The Applicant has not provided any particulars of the breach. His allegation is vague and general. For reasons as explained below, upon an anxious scrutiny of the Decision, this Court is satisfied that the high standard of fairness has been observed by the Board. Ground (6) – Procedurally improper and unfair 24.The Applicant complained that the Adjudicator (1) acted improperly procedurally and/or unfairly when assessing whether to accept his explanations; (2) unreasonably required him to respond to questions which he was not in a position to offer any response; and (3) failed to take into account the nexus of political parties and official corruption in Gambia. Complaint (1) is groundless. Despite the Board’s doubts about his credibility, the Board assessed his claim on the basis of the case as he asserted. The Board simply accepted his evidence or explanation. He cannot complain that is improper or unfair. Complaint (2) is equally groundless. The Applicant did not attend the oral hearing. The Board did not have the opportunity to ask him questions and could not have required him to respond. Complaint (3) is obviously premised on the pre-2016 COI relied on by the Applicant which are irrelevant. Ground (7) – Irrationality 25.The Applicant argued that the Board should have allowed his appeal than dismissed it. He is in effect challenging the finding of fact by the Board. This is not permissible, save for errors of law, procedural unfairness and irrationality. Presumably, his argument is also premised on the pre-2016 COI which have no relevance today. The Court will further consider this ground in its overall scrutiny of the Decision. Overall scrutiny of the Decision 26.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of the case as he asserted. It was on that basis that the Board found there is no factual basis to support his claim to non-refoulement protection by reason of the significant changes in the political scene in Gambia since he left the country 12 years ago. He can now safely return to his home country. Accordingly, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as he asserted. He could have no reason to complain about the Board’s finding of these primary facts. It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review may not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. This is all the more a good reason for refusing to grant him leave to file the leave application out of time. Conclusion 27.For the above reasons, leave to amend the date of the Decision in respect of which relief is sought is granted, but leave to file the leave application out of time is refused and the application for leave to apply for judicial review of the Board’s Decision is also refused. Dated the 10th day of January 2024.
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 [1] CACV 63/2015 (unreported) 3 November 2015 [2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ [3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [7] [2016] EWCA Civ 122 [8] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment