NJIE MODOU B v. TORTURE CLAIMS APPEAL BOARD

HCAL 59/2022

[2022] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 59 of 2022

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 the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 12 December 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of The Gambia who last arrived in Hong Kong on 1 August 2009 as a visitor with permission to remain up to 15 August 2009 when he did not depart and instead overstayed, and was arrested by police on 9 April 2010. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ebo Town, Barra, The Gambia where he purchased a piece of land at the age of 15 with money earned from part-time jobs. As a youth he also joined the Ebo Town Youth Wing (“ETYW”) of the then ruling political party Alliance for Patriotic Reorientation and Construction (“APRC”).

3.  After obtaining a bachelor degree from a local university, he worked as an IT technician, and continued to be involved in the activities of ETYW and participated in their development of Ebo Town.

4.  In 2007, for the purpose of building his house and paying for his mother’s medical expenses, the Applicant borrowed a loan from Momodou, the local leader of ETYW to be repaid within one year and with the title documents of his land held as security.

5.  However, by 2008 the Applicant was unable to repay the loan, and when Momodou refused to return the land documents to him and also threatened to kill him if he failed to repay his loan, the Applicant ceased all his activities in ETYW so as to avoid Momodou.

6.  As a result, Momodou made a complaint to the police who then arrested the Applicant and detained him in the Ebo Town Police Station where he was beaten and denied food and water for a week before being released with a warning to settle his debts due to Momodou.

7.  Upon his release the Applicant became fearful for his life and departed The Gambia on 8 December 2008 to various countries in Africa and Asia including several trips to China and Hong Kong, and on his last trip to Hong Kong on 1 August 2009 with permission to stay up to 15 August 2009, he did not depart thereafter and instead overstayed, and upon his subsequent arrest by the police some 8 months later in April 2010, he then raised his non-refoulement claim for protection, for which he completed a Torture Claim Form (“TCF”) on 11 February 2014 and a Supplementary Claim Form (“SCF”) on 24 March 2014 as well as attending screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

8.  While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 30 March 2012 for drugs trafficking and was subsequently convicted and sentenced to prison for 10 months.

9.  By a Notice of Decision dated 7 August 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 doubted the credibility of his claim due to inconsistencies and discrepancies in his evidence which was further undermined by his failure to raise his claim upon his arrival in Hong Kong until some 8 months later after his arrest by the police, that even if his claim were true that the level of risk of harm from Momodou upon his return to The Gambia was assessed as low due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of Momodou to seriously harm or kill the Applicant other than to put pressure on him to repay his loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection 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 available in The Gambia with a large population 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 part of The Gambia away from his home district in large cities where it would be difficult if not impossible for Momodou to locate him.

11.  On 21 August 2014 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 10 December 2014 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 December 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found the presentation of the Applicant’s claim wholly unreliable with glaring contradictions among his TCF, SCF and screening interview records before the Director and his evidence given before the Board as well as grave doubts on the authenticity of his supporting documents and his bare assertions of being able to purchase his land at the age of only 15 with money earned from part-time jobs of fishing all of which the Board found to be incredible and implausible, and that the credibility of his claim was further undermined by his failure to raise his claim for protection during his many trips to Hong Kong until some 8 months after his last arrival in Hong Kong and only upon his arrest by the police that it concluded that his account of events occurred in The Gambia prior to his departure were all fabrications that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

13.  Meanwhile the Director on 13 March 2017 on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 12 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life being violated upon his return to The Gambia.

14.  On 13 July 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but as his Notice of Appeal was filed outside the 14-day period after receipt of the Director’s decision as required under Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT(2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal.

15.  By a written notice dated 12 December 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it was late by more than 10 weeks which was substantial and inordinate, that his explanation of having changed his address but without informing the authorities was not acceptable, and that there was nothing in all the relevant matters of fact within the Board’s knowledge including the merits of his claim or appeal as set out in his listed grounds of appeal that would justify exercising the Board’s discretion to allow the late filing of his Notice of Appeal.

16.  On 14 January 2022 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and in which he complained that the decision was wrong and not fair or reasonable, and that it failed to take into account that his right to life must be protected by criminal law from extra-judicial killings that he may face if deported to his home country.

17.  By then the Applicant was however seriously 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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

18.  As the last day of the three-month period for him to file his Form 86 fell on 12 March 2019, the Applicant was therefore some 2 years and 10 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.

19.  In the Applicant’s case, a delay of 2 years 10 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or supporting affirmation, while the record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, and as the Applicant also failed to attend the hearing of his application without any explanation, I am unable to see any valid reason for his such serious delay.

20.  As for the merits of his intended application, as noted above the Applicant merely made a bare assertion that the decision was not fair or reasonable without providing any details or particulars or elaboration as to how it was so, while even on the basis of his own case at the highest that his claim arose from a private monetary dispute between him and his creditor over his outstanding debts that I fail to see what relevancy would extra-judicial killings have to do with his claim or how his claim would on the facts and circumstances engage the BOR 2 ground. As such, and in the absence of any further elaboration from the Applicant due to his absence at the scheduled hearing before the Court without any explanation, I do not find any merits in his intended application either.

21.  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.

22.  In the Applicant’s case, the Board having first rejected his claim in its earlier decision on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 67 of its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and on the basis of such findings which were never challenged by the Applicant by any legal process, the Board was in my view entirely correct to refuse the late filing of his Notice of Appeal for his BOR 2 Claim after having taken into account all the relevant matters of fact within its knowledge including the merits of his claim and appeal as held necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, 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.

23.  Furthermore, the fact is that it has also been correctly established by the Director in his first decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, a decision also confirmed by the Board, there is simply no justification in the first place to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

24.  In the premises and having considered both decisions of 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 under all the applicable grounds, or of the Board’s refusal to allow the late filing of the Applicant’s appeal regarding his BOR 2 Claim.

25.  For these reasons I am 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 extremely serious delay, I refuse to extend time and accordingly dismiss his leave application.

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