Drammeh Matarr v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2617/2019

[2025] HKCFI 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2617 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 24 February 2025. I shall deal with his application on the papers.

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 is a national of Gambia. The applicant arrived in Hong Kong by the strength of his Gambian passport and permitted to remain as a visitor until 10 November 2014 but instead overstayed. The applicant surrendered to the Immigration Department on 5 December 2014 and the applicant subsequently lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by the former president of Gambia, Yahya Jammeh and his men because the applicant was unwilling to sell his land to the officials of the Agricultural Department.

6.According to the applicant, the authorities informed the applicant that the government was to acquire farmland, but when the land owners refused, they were arrested, and the land was taken by force. The applicant was not arrested as he was in Senegal at the time and was not involved.

7.Details of his claim are set out at paragraph 16 of the Notice of Decision dated 16 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the past ill-treatment inflicted did not attain a minimum level of severity; that perceived risk of harm was not as substantial as claimed; that the feared ill-treatment was assessed to be localized [23-29]; that state protection was available [30]; and that internal relocation alternatives were available and reasonable [31].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 5 June 2019, the Board conducted an oral hearing for his appeal, during which the Board found the applicant’s claim to be vague and unsubstantiated in the extreme [14]. The Board also noted that the government at the time the applicant’s land was allegedly taken had been ousted in elections and a new government was in place. However, the applicant could not provide an answer as to why he could not return [15].

11.Having considered the evidence, the Board found that the applicant did not seek protection from authorities at the earliest opportunity [18]. In any event, having considered the Country of Origin Information, the Board found that the applicant’s problems related to a land acquisition dispute with the former government 6 years ago and the applicant made little effort to find out what has happened to his land and noted that the applicant’s family was still occupying the land and it was unlikely that the applicant was still at risk [21-22]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.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).

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

16.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.”

17.The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

19.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.