Yahya Sanyang v. Torture Claims Appeal Board

HCAL 180/2024

[2024] HKCFI 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 180 OF 2024

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;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 November 2022 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of the West African country The Gambia who arrived in Hong Kong on 15 July 2014 as a visitor with permission to remain as such up to 13 October 2014 when he did not depart and instead overstayed, and on 22 October 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian authorities and/or the National Intelligence Agency (“NIA”) due to his father’s political activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bwiam, District Foni Kansala, Western Gambia where his father was a military officer in the Gambian Army. After obtaining an engineering diploma from the Gambian Technical College, the Applicant worked as a supervisor in the National Water and Electricity Company, and followed his father’s footstep to support the political party Alliance for Patriotic Reorientation and Construction (“APRC”) then the country’s ruling political party.

3.In 1998 the Applicant’s father retired from the Army and joined as a member of APRC participating in their local youth projects, and had over the years grown very popular amongst the young voters but much to the dislike of the then President Jammeh who then in 2006 had the Applicant’s father arrested by the National Intelligence Agency (“NIA”).

4.Fearing that the NIA would also come after him, the Applicant shortly thereafter in 2006 fled from the country with his mother and siblings for Dakar in Senegal, but later when he heard that his father had been killed by NIA in The Gambia, he feared that NIA would send agents to find and kill him in Senegal, the Applicant therefore left Senegal on 6 July 2014 for China, and from there he then 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 9 January 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer.

5.While released on recognizance pending the determination of his claim, the Applicant was twice arrested by police for possession of dangerous drugs, and for which he was subsequently convicted and given respective fine and imprisonment.

6.By a Notice of Decision dated 3 April 2017 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”).

7.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 NIA or the Gambian authorities upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any adverse interest of the Gambian authorities in him at all in the past up to the time when he was able to leave the country without any problem or incidents, that the situation in The Gambia has since changed significantly after President Jammeh who jailed his father was defeated in the 2016 election and had left the country in exile and that the newly elected President Barrow has launched significant reforms to the country in particularly as to NIA and to promote real democracy in the country that it is not accepted that there would still be any adverse interest in the Applicant or that he would face any real risk of harm from the authorities upon his return to The Gambia, that in the absence of any involvement of the current government in any political persecution in the past that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied and highly educated 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.

8.On 27 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was found to be filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 12 April 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

9.On 22 June 2018 the Applicant applied under HCAL 1173/2018 for leave to apply for judicial review of the Board’s decision, and for reasons not necessary to discuss here this Court on 18 May 2021 granted leave to the Applicant to do so, and on 16 December 2021 by way of a joint application of the Applicant and the Director, the Board’s Decision was quashed by the Court and that the Applicant’s appeal was remitted to a differently constituted Board for fresh determination.

10.The Applicant’s application for the late filing of his Notice of Appeal was subsequently allowed by the Board, and for his appeal the Applicant attended an oral hearing on 9 November 2022 before a different Adjudicator for the Board during which the Applicant gave oral evidence and answered questions raised of his claim. On 23 November 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 made earlier to the Director and to the Board as well as the material and information disclosed in his NCF and other information contained in the hearing bundle that it found the Applicant prone to exaggerate and inflate his claims, that he tailored and changed his evidence where it suited him, and that he was evasive in his other responses that it considered him not a credible or truthful witness that it seriously doubted his claim of political persecution being brought against his father by the Gambian authorities or of his fear of harm from the Gambian authorities or NIA that caused him to flee his country to come to Hong Kong to seek protection, that his account of events in The Gambia prior to his departure were not accepted as credible or supported by any documentary evidence or relevant COI which in fact show that the former corrupt regime of President Jammeh had ended with the president having gone exile and replaced by the newly elected President Burrow who has brought significant reforms to the country that it is not accepted that the Applicant will face any risk of harm in any proscribed form or from anyone upon his return to The Gambia where state protection will also be available to him if so required that the Board concluded that his claim for non-refoulement protection failed on all the applicable grounds.

12.On 18 January 2024 the Applicant filed his Form 86 for leave to apply for judicial review of this decision of the Board, and in his supporting affirmation of the same date he repeated his claim as before and then put forward the following grounds for his intended challenge:

(1)  That the Board misdirected itself as to the reasons for concluding that the Applicant faces no real risk of harm upon his return to his home country in The Gambia;

(2)  That the Board failed to take into consideration the brutality and corruption and human rights abuses that run through the government at all levels in The Gambia before coming to the conclusion not to accept the Applicant’s claim under CIDTP;

(3)  That the Board’s decision is unreasonable/irrational/illogical by taking issues with insubstantial matters regarding the Applicant’s claim despite the fact that the basis of his claim is clear;

(4)  That the Board’s finding that the Applicant will not face any real risk of harm if refouled to The Gambia is irrational;

(5)  That the Board’s finding that there is not a reasonable likelihood or a serious possibility or a reasonable chance or a genuine and substantial risk or a real risk that the Applicant would be targeted for harm for the reasons he claimed or for any other reasons if he returns to The Gambia is unreasonable and illogical; and

(6)  That the Board’s finding that the Applicant does not face any real risk of harm for reasons of his political activities or for reasons of his father’s activities in The Gambia or for other reasons is unreasonable given the disappearance of the Applicant’s father falls under the definition of torture risk persecution risk or BOR 3 risk but that the Board just ignored such evidence leading to such a conclusion that it is highly detrimental to the Applicant’s life.

13.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for him to file his form 86 fell on 23 February 2023, the Applicant was therefore almost 11 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of almost 11 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and at the hearing he explained to have been detained by the Immigration Department and was without any legal assistance with his application that caused such serious delay.

16.The record shows that the Board’s decision was sent on the same day of 23 November 2022 to the Applicant in his detention at Castle Peak Bay Immigration Centre (“CIC”) without being returned through undelivered post, and while accepting that there would be the inevitable difficulties and inconveniences in seeking legal assistance while in detention, but given the availability of assistance from welfare officers at CIC or similar correctional institutions, I am not satisfied that there is any justification for such serious delay of the Applicant.

17.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some broad and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

18.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.

19.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 46 – 96 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 relevant COI regarding the current political situation in The Gambia and the significant changes and reforms to its regime since the Applicant’s departure of the 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.

20.I should also mention that prior to the hearing of his application, the Applicant wrote to request for an interpreter in the Jola dialect but which upon enquires carried out by the Court that it is not available in Hong Kong, and that the Applicant also repeated such request at the hearing of his application, but given the facts that the Applicant had previously stated in his NCF and other documents in support of his claim that he was able to read write and communicate in English which he also admitted to be the official language of his country, that he had had 15 years of education including a diploma in Architectural Engineering from a university in The Gambia, that he was able to conduct his appeal hearing before the Board in English without difficulties, and had written his many documents and letters relating to his claim including those to the Court all in English, I was satisfied under the circumstances that the Applicant would not be prejudiced in any way for the hearing of his application to proceed without his requested interpreter and in English.

21.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.

22.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good or valid reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 9^th day of April 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