Gomez Joseph Lawrence v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1485/2019 on BabelCite. This High Court CFI judgment was delivered on 28 May 2024.
1. The applicant applies for leave to apply for judicial review of the Decision dated 16 April 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”).
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HCAL 1485/2019 [2024] HKCFI 1178 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1485 of 2019
Application for Leave to Apply for Judicial Review Following;
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 16 April 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 8 April 2024. The applicant 3.The applicant, aged 39, is a Gambian. He last entered Hong Kong as a visitor on 15 November 2014 and overstayed since 23 November 2014. He surrendered to the Immigration Department on 25 November 2014, and made a non-refoulement claim on 2 January 2015. The claim was made on the basis that, if refouled, he would be caught or even killed by his brother, the people at his local community and the whole country of Gambia due to his homosexuality. 4.According to the applicant, he had a friend who lived in the same area. In around 2007, his friend moved into the applicant’s house and they shared the same bedroom. Not long afterwards, they found attraction towards each other and started to wonder about their sexualities. In around early 2012, they fell in love with each other and started dating secretly. They did not tell anyone about their relationship because homosexuality was forbidden in Gambia and local people even considered it a sin. 5.In around mid-2013, the applicant’s nephew found out the applicant’s homosexual relationship with his friend after he saw them kissing. On the next day, the applicant’s parents confronted the applicant about his homosexuality, which the applicant denied. Eventually, his friend was forced to move out of his home and he then relocated to Kololi town. Despite the departure of his friend, the applicant still kept contact with him and secretly met him from time to time at Kololi. One day in December 2013, while the applicant and his friend were holding hands on the street in Kololi, around three people approached them and questioned whether they were homosexuals. The three people also threatened to beat them. A week later, the applicant and his friend were intercepted by 5-10 people while they were walking in Kololi. The applicant recognised three of them were the same people who had approached them previously. Those people then assaulted the applicant and his friend with kicks and punches (“Kololi assault”). They sustained bruises all over their bodies as a result, but they did not seek any medical attention, as there were no serious injuries. 6.Two days later, the applicant’s friend decided to leave Gambia for Senegal for his safety. He also invited the applicant to go with him, but the applicant was not financially stable at that time and therefore rejected his invitation. The applicant maintained frequent contact with his friend even after his friend left Gambia for Senegal and a week later, for Italy. Meanwhile, people in his local community started to query the applicant about his sexuality after the Kololi assault. Although he denied being a homosexual, people would still come up and condemn him on the street. They even threatened killing him. 7.One day in December 2013, the applicant’s mother learnt about the Kololi assault and confronted the applicant about his sexuality. A few days later, his brother also confronted him on the same matter. They had an intense argument, which eventually turned into a fight. The applicant had one of his teeth knocked out and sustained bruises all over his body. His brother then asked him to leave the house and made it clear that he would kill him if he saw him again. 8.The applicant relocated away from his home a few days later. At around 11 August 2014, he left Gambia for Senegal. He arrived in Mainland China on 14 August 2014 and he entered Hong Kong on 23 August 2014. On 12 November 2014, the applicant left for Thailand, but he returned to Hong Kong on 15 November 2014. He overstayed since 23 November 2014 and he surrendered to the Immigration Department on 25 November 2014. 9.The applicant stated that he had no contact with his brother anymore after the fight between them and that his family had disowned him. The only family member the applicant maintained contact with was his younger sister, who told him that it was not safe to return to Gambia. The applicant also learnt that his friend had been accepted as an asylum seeker in Italy. 10.The applicant was of the view that he could not get protection from the authorities because Gambia had no toleration towards homosexuals as reflected in a speech by the Gambian ex-president, so that he would be in great danger if he approached the police for protection. Although the current Gambian president assured the rights of homosexuals in Gambia, the applicant still disagreed that he would be safe, as there had not been a change in the law by the new government. The applicant also considered internal relocation not viable because there was no safe place for homosexuals in Gambia, so that he would have to spend the rest of his life under strain, stress and fear if he returned. 11.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 11 May 2018 (“the Director’s Decision”). The Director’s Decision 12.The Director considered the applicant’s claim in relation to the following risks:
13.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment received by the applicant indicated a small future risk of harm upon his return [14]-[15]; (ii) his delay in seeking non-refoulement protection was inconsistent with a person who was genuinely in fear of being harmed [18]; (iii) state protection will be available to him upon his return [16], [19]-[20]; (iv) internal relocation is viable [17], [21] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35]. The Board’s Decision 14.The applicant appealed the Director’s Decision to the Board. On 8 August 2018, the Board conducted an oral hearing. 15.The Board found the applicant’s evidence given during the hearing was generally similar to much of the information in his non-refoulement claim form, but when questioned in detail, he provided different information or omitted significant details [101]-[102]. He differed as to (i) when and why his friend moved into his home [68]-[74], (ii) the circumstances concerning the moving out by his friend from the applicant’s home [75]-[80], (iii) when his friend left Gambia [84]-[89] and (iv) details in relation to why he relocated away from his hometown [90]-[96]. The applicant’s delay in making a non-refoulement claim also adversely affected his credibility [97]-[100]. 16.Based on such findings, the Board found the applicant was not a witness of truth [103]. Although the country of origin information indicated homosexuals were indeed persecuted in Gambia, the Board did not accept the applicant to be a homosexual or had a same sex relationship with his friend. They also did not accept his claimed threats and assaults from people in Kololi, his local community and his family due to his homosexuality. Therefore, it considered that the applicant would not face any of the claimed risk if returned to Gambia [104]-[109]. 17.The Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [110]-[123], BOR 2 and BOR 3 risk [124]-[134] or Persecution risk [135]-[146]. 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 18.The applicant has filed Form 86 dated 31 May 2019 for leave to apply for judicial review of the Board’s Decision. 19.In his affidavit in support of his application, he asked for an oral hearing. He did not raised any specific ground. DISCUSSION 20.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). 21.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 he wants the Court to re-consider the Board’s Decision. 22.For the reasons given in paragraph 15 and paragraph 16 above, the Board did not accept the applicant’s evidence that he is a homosexual and he came to Hong Kong for avoiding being harmed or killed by the people in his country because he is a homosexual. 23.There is no valid ground from the applicant to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s findings. 24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. CONCLUSION 25.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 28th 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
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