Krubally Fabakary v. Torture Claims Appeal Board
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HCAL 646/2023 [2026] HKCFI 4621 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 646 OF 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 42-year-old national of the West African country The Gambia who arrived in Hong Kong on 15 June 2014 as a visitor with permission to remain as such up to 13 September 2014 when he did not depart and instead overstayed, and some 4 months later on 19 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 government/authorities for political reasons. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Kafuda Town, Kombo East District, The Gambia. After leaving school with a diploma in travel and tourism, he worked in the hospitality sector before running his own sports shop business in his home district, and supported the political party United Democratic Party (“UDP”) in opposition to the then government of President Jammeh and his ruling party Alliance for Patriotic Reorientation and Construction Party (“APRC”), and regularly attended UDP’s local meetings and recruiting activities. 3.Between 2012 and 2014, the Applicant also worked as an undercover reporter for the newspaper Kibaaro News which promoted freedom, justice and equality in the country by providing sensitive information about the Gambian government’s oppressive operations against its dissidents. 4.In February 2014 the Applicant was arrested by agents of the National Intelligence Agency (“NIA”) and was detained for interrogations as to his activities for UDP and the Kibaaro News, and when he was eventually released the next day, he was warned not to continue with his political activities or else he would be arrested again with more serious consequences. 5.As a result the Applicant became fearful for his safety, and so he fled to neighboring Senegal for one month before returning to The Gambia to resume his activities for UDP and the Kibaaro News, but later when he was told by his fellow UDP members that they had information that the NIA were looking to arrest him again, the Applicant therefore departed The Gambia in May 2014 for Senegal, and from there he travelled to China and then to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 March 2016 and attended screening interview before the Immigration Department with legal representation. 6.By a Notice of Decision dated 24 November 2016 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”). 7.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 low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he was being pursued by the Gambian authorities for any political reasons, that there are on-going reforms in The Gambia that the government had taken practical steps to monitor the conducts of its police and improve their effectiveness and the protection of the rights of its citizens, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of the country away from his home district in large cities such as Brikama where it would be safe for him to re-establish his life and career there. 8.On 14 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and while the filing of his notice of appeal was initially deemed late and was refused by the Board, it was subsequently allowed by a differently constituted Board, and for his appeal the Applicant attended an oral hearing on 2 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by a different Adjudicator for the Board. On 24 August 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it did not find him to be a credible witness and doubted the credibility of his claim of fear of harm from the then Gambian authorities that caused him to leave the country to eventually come to Hong Kong to seek protection, that even if his account of events prior to his departure of The Gambia were true or that the then claimed risk were real but updated relevant COI show that the current situations and conditions of his home country have changed significantly and substantially since his departure in 2014 when the previous regime under then President Jammeh which he feared has since lost the 2016 general election and replaced by the regime of the current President Barrow after Jammeh had left the country in exile and which has brought substantial reforms in the improvements and protection of human rights and justice for its citizens that the Board found that any claimed risk from the previous regime has since dissipated that it concluded that the Applicant will not face any risk of harm from anyone upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds. 10.On 3 May 2023 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 subsequently attend the scheduled hearing of his application without any explanation. 11.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 12.As the last day of the three-month period for him to file his Form 86 fell on 24 November 2022, the Applicant was therefore more than 5 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 13.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 24 August 2022 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. 14.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge or attend the scheduled hearing of his application without any explanation. 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 merits in his intended application either. 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 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 that his claimed risk from the previous regime of the Gambian government even if real has since dissipated over the years after that previous regime has been replaced by the current regime and government of the present President Barrow that has brought real and substantial reforms to the protection and improvements of human rights to its citizens that the Board was entirely correct to find that the Applicant will not face any more risk of harm from the Gambian authorities upon his return to his home country. As such, 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 findings 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.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 18th day of August 2026
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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Cases cited in this judgment