Cham Ousman v. Torture Claims Appeal Board
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HCAL 2076/2019 [2025] HKCFI 4605 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2076 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant is a 39-year-old national of The Gambia who arrived in Hong Kong on 4 September 2014 as a visitor with permission to remain as such up to 3 December 2014 when he did not depart and instead overstayed, and on 5 December 2014 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 previous regime of Former President Jammeh as his uncle was involved in a failed coup against the then government of The Gambia. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born in Fasschamen, The Gambia, and was raised as a small child by his uncle Ndure in Brikama Town, Kombo Central District, West Coast Region where his uncle worked for the military and was appointed the Chief of Defense Staff. 3.After leaving school the Applicant worked as a teacher, a cashier and a branch manager of a trading company in his home district. 4.In 2005 Ndure became dissatisfied with the dictatorship of then President Jammeh, and planned with other military personnel to stage a coup to overthrow his dictatorship, but the plan was discovered by Jammeh in March 2006 who ordered for the arrest of all those involved including Ndure who was however able to make his escape from his home and went into hiding, and on 21 March 2006 Ndure left the country for Senegal. 5.On 22 March 2006 when the Applicant returned home from school, he together with his aunt was arrested by officers of the National Intelligence Agency (“NIA”) and taken to a NIA office in Banjul and detained for interrogations for the whereabouts of Ndure for the next 3 weeks, during which the Applicant was never ill-treated and was provided with food and water, and was eventually released as well as his aunt without any harm. 6.Thereafter the NIA officers would return from time to time to ask the Applicant and his aunt for any news of Ndure, and when they were unable to provide any new information, those officers would just leave them alone and left. 7.However, in August 2013 the Applicant started to hear news that Ndure had been arrested in Farafenni in the North Bank Region, and one day some military people came to the Applicant’s home to ask questions about Ndure, and proceeded to search the house and confiscated the Applicant’s passport and identity card without any explanation before they left. 8.Shortly thereafter one day in September 2013 the Applicant was informed by a friend that the NIA officers were also looking for him, and that he also heard of subsequent arrests of other persons including politicians by the NIA or authorities for being involved in the afield coup, the Applicant therefore became fearful that he would also became a target and get arrested, and so on 26 September 2013 he departed The Gambia for Senegal to take shelter in a friend’s place for 5 months before moving on to another town before departing Senegal on 27 August 2014 for China, and on 4 September 2014 he travelled to Hong Kong where he subsequently overstayed, and on 5 December 2014 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 9.By a Notice of Decision dated 23 October 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”). 10.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 authorities upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any adverse interest of the previous regime of the former President Jammeh who lost the election in December 2016 and has since left the country in exile after his defeat by the current government of President Barrow who had promised and brought significant reforms to improve the political and human rights situation in The Gambia that it is not accepted that there will be any adverse interest from the Gambian government or authorities in the Applicant upon his return to the country, that in any event state or police protection from the current regime would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him. 11.On 1 November 2017 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 21 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 12.In its decision[1] the Board accepted the Applicant’s evidence as to what happened to his uncle in The Gambia in the past as consistent and credible but found no reliable evidence of any adverse interest in him from the previous regime of former President Jammeh when he was never harmed or ill-treated from 2006 to 2013 when he left the country, let alone from the changed regime or government of the current President Barrow after his defeat of Jammeh in December 2016 and proceeded to bring reforms and improvements to the political and human rights situations within the country that it is not accepted that the Gambian securities or intelligence services would seek to target the Applicant for harm or to have any adverse interest in him, and that relevant COI do not support the claim that people associated with the previous regime pose any active threat to people they perceived as their opponents when they were in power that it is not accepted that the Applicant would face any real risk of harm on the basis of the general security in The Gambia upon his return to the country that his claim for non-refoulement protection failed on all applicable grounds. 13.On 22 July 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 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 did he request any oral hearing for 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. 14.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. 15.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI on the current political and human rights situations in The Gambia, and that 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. 16.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. 17.Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as he has been granted a dependent visa but without providing any further details or documentary evidence to support of his request. 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 10th day of October 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 |
Cases cited in this judgment