Sarr Dawda v. Torture Claims Appeal Board

HCAL 333/2019

[2025] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 333 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of The Gambia who last arrived in Hong Kong on 17 December 2014 as a visitor with permission to remain as such up to 19 December 2014 when he did not depart and instead overstayed, and on 2 January 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by the Gambian police and authorities arising from their investigation of his father’s affairs and/or for breaching his own bail conditions. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Banjul, The Gambia. After leaving school he assisted in the garments and electronics trading business of his father who also worked as a ‘Tele Clerk’ for the Gambian Port Authority (“GPA”).

3.One day in early 2013 the Applicant was informed by his sister that his father had been taken away from home by some men believed to be plain clothed police officers, but when the Applicant attended at the Banjul police station to inquire about his father’s situation, he was told that there was nothing they could disclose to him and that he should just go away.

4.On the next day the Applicant went to the CID Office of Banjul but was given the same answer, and later he was told by a friend with connection to the police that his father had been detained by the Task Force, an underground force working for the government, and that the Applicant should back off to avoid trouble to himself.

5.For the next several months when the Applicant still had not heard anything about his father, he could only assume the worst that his father must have been killed by the authorities for some unknown reasons.

6.One evening in August 2013 while alone at home, the Applicant was abducted by 8 unknown men to some unknown building where he was tied up and interrogated as to his father’s financial situation, during which he was tortured by being striped naked and having melted candle wax dropped on his private part and with his limbs burnt by cigarettes.

7.About one week later he was taken to a military camp in Yundum where he was detained for another week before being returned to the Banjul police station where he was formally told that the police were investigating his father’s financial affairs, and that they had already obtained all the information that they needed from him, and that he was then released on bail after being warned not to disclose his ordeals to anyone.

8.After his release the Applicant returned to his home and told his family of what happened, and after receiving medical treatments for his injuries, and believing his ordeals with the police and authorities were finally over, he resumed running his father’s garments and electronic business by taking business trips to various places including Senegal, Dubai, Egypt, China and Hong Kong for purchasing goods.

9.However, during his last trip to Hong Kong on 17 December 2014, the Applicant was informed by his mother in Banjul that the police had come looking for him again, and warned him not to return to The Gambia for the sake of his own safety, and so the Applicant did not depart and overstayed in Hong Kong, and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 16 May 2016 and a Notice of Further Decision dated 29 June 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Gambian police or authorities upon his return to The Gambia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to extract information from him about his father’s financial situation and that he was released upon obtaining all the necessary information that there is no reason why they would still have any adverse interest in him, and while relevant Country of Origin Information (“COI”) show that such abuses and open disregard of human rights by the Gambian police and authorities were common and routine in the regime of former President Jammeh, situations have since changed and much improved after his defeat in the 2016 election and has left the country in exile, and that newly elected President Barrow has since brought substantial reforms on freedom and human rights to the country that it is not accepted that the Applicant would still face any risk of harm from the police or authorities or from anyone over his father’s affairs or for that matter from anyone upon his return to The Gambia.

12.On 30 May 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 18 July 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 1 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

13.In its decision the Board accepted the Applicant’s claim of his ordeals suffered in the hands of the Gambian police and authorities prior to his departure of the country in 2014 but found on the basis of relevant and objective COI that those events arose at a time when the regime of President Jammeh was in power which was by all account a repressive and corrupt one, but that situations including human rights and law and order within the country have since much improved after the regime change in 2016 and with newly elected President Barrow having brought substantial reforms to the country that it is not accepted that there would still be any adverse interest in the Applicant from the authorities or from anyone for that matter over his father’s affairs or that he will face any risk of harm from anyone upon his return to The Gambia in particularly taking into consideration of the fact that even under the former repressive regime that the Applicant was still able to go in and out of the country without any problem with the authorities that his claim for non-refoulement protection failed on all applicable grounds.

14.On 4 February 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 72 of its decision with the benefits of relevant and objective COI as well as hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made on his behalf by his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 3^rd day of July 2025

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