Jaiteh Karamo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2361/2019

[2025] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2361 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 13 August 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. However, he was absent at the hearing on 11 December 2024. I shall deal with his application on paper.

The applicant

3.The applicant, aged 45, is a Gambian. He entered Hong Kong as a visitor on 27 August 2014. He overstayed since 26 November 2014 and he surrendered to the Immigration Department on the same day. The applicant made a non-refoulement claim on 12 December 2014. The claim was made on the basis that, if refouled, he would be prosecuted or torture by the Gambian police.

4.According to the applicant, he was detained by the police for a week on 10 April 2000 for planning and participating in a demonstration when he was a student. The applicant started to work as a Trainee Lecturer in the Gambia Technical Training Institute (“GTTI”) on 1 October 2007 and he was promoted to Lecturer in 2009. In March 2014, during the middle of the school term, the applicant left Gambia for Indonesia via Senegal to visit his uncle. Under Gambian law, it was unlawful to leave the country without clearance from the office of the President. It would also be a criminal offence to depart Gambia without the consent of an employer (“the two offences”). A wanted notice was therefore issued against the applicant. The applicant had tried to apply for asylum in Indonesia and Thailand, but were unsuccessful. Eventually, he arrived in Hong Kong on 27 August 2014.

5.The applicant worried that he would be prosecuted for the two offences and be tortured by the police upon return to Gambia. He was informed by his sister that the police had tried to obtain information of his whereabouts from his mother by detaining her for a few days in mid-March 2014. The applicant was of the view that he could not seek protection from the authorities because the former Gambian president was a dictator and the government was corrupt. He also considered internal relocation not viable because the police could still find him.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 23 July 2018 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from the Gambian police indicated a small future risk of harm upon his return to Gambia [14]; (ii) avoiding the due process of law is not a valid ground for non-refoulement claim and there was no evidence that the applicant would be denied a fair trial [15]; (iii) the misconducts or malpractices of some individual police officers could not represent the stance of the Gambian government [16]; (iv) there was a drastic change in the political environment of Gambia since the applicant’s departure in 2014 [17]; (v) state protection would be available [18] and (vi) internal relocation would be viable [19].

The Board’s Decision

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

10.The Board considered that the applicant was not a witness of truth and that his claims were fabricated [46]. The Board rejected the applicant’s claim in relation to his employment with GTTI because the evidence he gave was inconsistent and the employment letter from GTTI was also problematic. Accordingly, although the country of origin information (“COI”) indicated that permission to travel overseas was required at the time when the applicant left Gambia, he should not face any risk of arrest for committing the two offences [47]-[51], [56]. The applicant’s credibility was further undermined by his unconvincing and vague evidence in relation to the wanted notice, his mother’s arrest and his contact with his family [52]-[55].

11.Regarding the demonstration in 2000, the Board was not satisfied that the applicant was involved in its organisation because his evidence contradicted with the information in the COI about the background that led to the protest [57]. Even if the applicant had participated in the demonstration and was arrested, there was no evidence indicating that he would still face any harm because of such events [58].

12.Meanwhile, the political situation in Gambia had changed substantially since the applicant’s departure in 2014. Although there was still criticism of the current Gambian regime, the Board observed that major progress had been made in recent years. During the hearing, the applicant raised for the first time that he was against the current Gambian president, but he failed to provide any concrete evidence in support of such assertion. In any event, the Board was satisfied that the applicant had not actively engaged in politics in Gambia in the past and there was no evidence that he would do so in the future, so that he would unlikely attract adverse attention from the Gambian government [60]-[67].

13.Based on such findings, the Board found the applicant would not face any real risk of harm upon his return to Gambia [68] and rejected his claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [11]-[27], [69]-[74]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

14.The applicant has filed Form 86 dated 15 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.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).

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

18.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.”

19.There is no valid reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant was unrepresented and did not appear.