Camara Abdoulie v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1417/2019

[2024] HKCFI 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1417 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision, which is 29 September 2017.  His application was filed on 24 May 2019, which is more than one year and 7 months. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 35, is a Gambian. He last entered Hong Kong as a visitor on 19 November 2014. He overstayed since 6 December 2014 and he surrendered himself to the Immigration Department on 8 December 2014. The applicant made a non-refoulement claim on 2 January 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by some unknown soldiers and the National Intelligence Agency (“NIA”) officers under the order of the Gambian President because his father was involved in the presidential assassination plan in 2006. On 10 March 2015, the applicant was convicted of an offence related to dangerous drug trafficking and was required to serve a sentence of 12 months.

5.According to the applicant, his father was a soldier. In or about 2006, his father took part in the presidential assassination plan. The plan failed eventually and all the people involved, including the applicant’s father, were caught and detained.  In or about early 2007, 6-7 soldiers came and expelled the applicant, his mother, his sister and his cousin from their home as the applicant’s father was no longer serving in the military. During the process, the applicant and the soldiers swore at one another. After that, the applicant and his family members rented a 2-bedroom house in the same district. Between mid-2007 and 2009, the soldiers visited their new home two or three times and questioned them about their ability to rent the new house. Between 2009 and 2010, the applicant was stopped by NIA officers four times while driving his father’s car. He was told to watch his steps as NIA had been watching him.

6.One morning in 2013, 4-5 soldiers came to their residence and arrested his cousin. Subsequently, his cousin fled to Dakar in Senegal upon release.  She urged the applicant to relocate to Dakar too as it was not safe in Gambia.  One night, when he was packing his luggage to Dakar, someone knocked on the door of his home.  He ignored that person and escaped from the back door.  He fled to Dakar and stayed at his friend’s home with his cousin for a few months, after which his cousin went to the United States of America to seek asylum. The applicant went back to Gambia at the end of March 2014 for his friend’s birthday. On 16 April 2014, when the applicant tried to return to Senegal from Gambia, he was detained and questioned by Gambian Immigration Authority about his purpose of travel for two to three hours.  He was subsequently released upon bribing them. The applicant left Dakar, Senegal for China on 17 April 2014. Thereafter and until November 2014, he travelled frequently among China, Hong Kong and Thailand. He last entered Hong Kong on 19 November 2014 and stayed here since then.

7.The applicant was of the view that he could not seek protection from the authorities as the Gambian government is against him and his family. He also considered internal relocation within Gambia not viable because it is a small country and he could not move anywhere.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 2 September 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim.  The Director found that the absence or low intensity and frequency of past ill-treatment from Gambian authorities is indicative of a small future risk of harm upon his return to Gambia [14]-[15]. The applicant’s behaviour was also inconsistent with that of a person subject to genuine threat [18].

11.In any event, (i) state protection will be available to him upon his return as the President had released his father [16]; (ii) internal relocation is viable [17] and (iii) the applicant’s case failed to meet any of the requirement under BOR 3 risk [19]-[21], Persecution risk [22]-[25] or Torture risk [26]-[28].

12.In the Notice of Further Decision dated 7 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return. These Director’s Decisions are collectively called “the Director’s Decisions”.

The Board’s Decision

13.The applicant appealed the Director’s 1^st Decision to the Board.

14.On 7 June 2017, the Board asked the applicant by letter to submit any additional grounds of petition, information and documentary evidence in relation to the Director’s 2^nd Decision. No response however was received. The Board proceeded to consider the BOR 2 risk.

15.On 29 August 2016, the Board conducted an oral hearing. On the face of the Board’s Decision, the Board seemed to have asked no question and it did not record any direct answer from the applicant. It referred to the answers given to the immigration officer only.

16.The Board found that the evidence given by the applicant was unreliable. He claimed that his father was executed in 2006. However, the Board noted from the Country of Origin Information (“COI”) that his father was in fact alive and was sentenced to life imprisonment in 2012. In 2015, his father was even pardoned by the Gambian President and released from prison. The Board also found the applicant’s action of returning to Gambia to attend his friend’s birthday inconsistent with his claim that he faced danger in Gambia. In any event, given the pardon of his father, the Board see no reason for the Gambian authorities to take adverse action against the applicant. They could have harmed or killed him on many occasions previously, but no such action was taken [17]-[36].

17.Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirement under Torture risk [39]-[42], BOR 2 and BOR 3 risk [43]-[47], [51]-[52] or Persecution risk [48]-[50]. Furthermore, state protection is also available to him taking into account the COI [37]-[38].

18.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decisions.

Application for leave to apply for judicial review of the Board’s Decision

19.The applicant has filed Form 86 dated 24 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.The applicant did not raised any specific ground in his affirmation in support of his application.

DISCUSSION

21.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

22.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

24.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

25.The applicant has failed to raise any valid ground to challenge the Board’s Decision.  In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

26.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

27.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 12^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