Ceesay Ebrima v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1643/2019

[2024] HKCFI 1181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1643 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 present in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 24 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant requested a hearing and he appeared before the Court on 10 April 2024.

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 40, is a Gambian. He last entered Hong Kong as a visitor on 13 April 2014 and overstayed since 13 July 2014. He surrendered to the Immigration Department on 11 August 2014 and made a non-refoulement claim on 23 September 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Junglers[1] and some strangers who beat him up in 2002 because he wrote letters to the Minister of Justice to reclaim his father’s assets.

5.According to the applicant, his late father worked for the former government and was a Chief Commander of the Gambian Police Force before he retired. After his father passed away in 1997, the former government seized all his family’s properties including his father’s house, cars and money in his bank account. In around 1999 to 2000, the applicant wrote two to three letters to the Minister of Justice complaining the acts of the former government. Subsequently, he was arrested and detained for about a month. During the detention, the applicant was tortured by the Junglers, who dripped melted plastic bags over him and hit him with an iron rod coated in plastic. Before his release, the Junglers warned the applicant not to tell anyone or write any letters about the detention and torture, otherwise they would escalate their action and he would even lose his life. The applicant sought treatment from a hospital upon release and took six months to recover fully. During his recovery period, his father’s friend, who was a police officer (“his father’s police friend”), advised him to leave Gambia. The applicant however did not listen to him because he still needed to fight for his father’s assets.

6.In 2002, while the applicant was walking on the street, some strangers blindfolded him and pushed him into a car. The strangers somehow knew the applicant had written letters to the Minister of Justice and hit him repeatedly with bare hands and hard objects. An hour later, the strangers dropped him off in the middle of a highway and fled. His family treated his wound when he returned home. His mother did not allow the applicant to attend hospital or to report the case to the police.

7.In 2010, the applicant went to Senegal and stayed at a friend’s home. He returned to Gambia a month later because his mother was feeling unwell.

8.In 2013, his father’s police friend introduced to the applicant a businessman who frequently travelled to China (“the businessman”). After the applicant told the businessman his situation, he agreed to help him leave Gambia. Eventually, the applicant left for China via Senegal in April 2014. On 13 April 2014, he entered Hong Kong as a visitor and overstayed since 13 July 2014.

9.The applicant’s mother passed away in 2016 and he had no family member in Gambia now. He however still had contact with his father’s police friend via WhatsApp.

10.The applicant did not seek assistance from the authorities because he did not think they could protect him. Although there was a change of government in Gambia, the applicant was of the view that the new government was the same as the old one and there was no justice. The applicant had never considered internal relocation because he did not know anyone elsewhere within Gambia.

11.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 4 July 2018 (“the Director’s Decision”).

The Director’s Decision

12.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”).

13.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment received by the applicant indicated that his perceived risk of harm would unlikely materialise [12]. Furthermore, the perceived threats should have dissipated given the elapse of time since the last assault in 2002 and the arrest of the Junglers by the new government according to the country of origin information (“COI”) [13] - [14]. The applicant’s decision to remain in Gambia for such a long period of time also reflected his risk of harm was not as real and imminent as claimed [15].

14.In any event, (i) state protection would be available to him upon his return [16]; (ii) internal relocation would be viable [17] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19] - [24], Persecution risk [25] - [30] or Torture risk [31] - [35].

The Board’s Decision

15.The applicant appealed the Director’s Decision to the Board. On 19 March 2019, the Board conducted an oral hearing.

16.The Board was of the view that the applicant was a credible witness and did experience harm in the past from people acting on behalf of the former Gambian government. They also accepted that his letters to the Minister of Justice was the cause for his mistreatments [48] - [50].

17.However, the COI showed that the situation in Gambia had improved drastically, as the new government had made significant changes and commenced new reforms to improve the rule of law and to hold authorities accountable for human rights abuse. In any event, the new government should not have an interest in the applicant given that the issue he had was with the former government who had seized his family’s assets [51] - [59].

18.Based on such findings, the Board considered that the applicant would not face a real risk of harm upon return to Gambia [62]. They concluded that the applicant’s case failed to meet any of the requirements under Torture risk [11] - [15], [63] - [65], BOR 2 and BOR 3 risk [16] - [21], [66] - [70] or Persecution risk [22] - [30], [71] - [73].

19.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

20.The applicant has filed Form 86 dated 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

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. Before me, the applicant said that the Board was wrong in its decision because it did not believe the facts he told the adjudicator and he wants this Court to review his case.

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.As the Board accepted the applicant’s evidence, the Court will look into the reasons upon which the Board dismissed the applicant’s appeal. The Board’s findings below will shed light on this issue:

“60. The Board accepts that the Appellant would face some challenges in returning to Gambia in light of the fact that his sisters are in the US and that he no longer has his parents to support him. He indicated that he is not familiar with any of his extended family but he did indicate that his tribe is one of the largest in Gambia. The Board notes that the Appellant has been able to survive in an unfamiliar environment in Hong Kong since he left his country and has been previously self-employed. This indicates that he should be able to find employment and if necessary to tap into his tribal networks to enable him to at least subsist if he returns to Gambia in the reasonably foreseeable future.

61. In view of the COI considered by the Board, it does not accept there is a consistent pattern of gross, flagrant or mass violations of human rights in Gambia since the installation of the new government for the purpose of section 37ZI(5) of the immigration Ordinance or otherwise.

62. In light of the findings above, the Board considers there is not a real risk the Appellant would face any of the proscribed forms of harm should he return to Gambia.”

26.The applicant has raised no valid reason to challenge the Board’s findings above. Such findings appear to be reasonable and logical. There is no reason that this Court should interfere with the Board’s Decision.

27.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 14^th day of May 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