SARR YAHYA v. DIRECTOR OF IMMIGRATION

HCAL 513/2018

[2020] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 513 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 12 April 2017 refused; and

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

Observations for the Applicant:

1.     The Applicant is a 32-year-old national of The Gambia in Western Africa who last arrived in Hong Kong on 24 March 2014 with permission to remain as a visitor up to 31 March 2014 when he did not depart and instead overstayed and was arrested by police on 11 August 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by supporters of rival political party Alliance for Patriotic Reorientation and Construction (“APRC”).  He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Village Lamin, The Gambia.  After leaving school he worked as a technician, got married and has a daughter, and became a supporter of the opposition political party United Democratic Party (“UDP”) where the majority of the villagers in his home supported the then ruling party APRC.

3.  In early 2013 there was an election held in his home village for electing a candidate for the local representative of his home region, during which the Applicant assisted in the election campaign for his party’s candidate who eventually won the election.

4.  However, as the local APRC supporters were not satisfied with the outcome, they tried to overturn the result by causing violent protests and inducing attacks against UDP supporters.

5.  Several days later the Applicant was abducted by some men in military uniforms whom he suspected were APRC people and was brought to a camp where he saw many of his fellow UDP supporters being kept there, and for the next three days they were beaten and tortured by those unknown men before they were eventually released, whereupon the Applicant immediately returned to his home village to hide in his home for a month.

6.  However, when he heard that his party’s candidate had left The Gambia to avoid threats from the APRC supporters, the Applicant fled to Village Daranka to take shelter in a friend’s place, but as he still felt it was not safe to remain in The Gambia, he therefore departed for Senegal on 6 August 2013 where he stayed for a week before returning to The Gambia, and on 14 September 2013 he departed again, and this time for China, and from there he took several short trips to Hong Kong as a visitor, but in his last visit in March 2014 he overstayed until his arrest by the police in August 2014 when he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 4 May 2016 the Director of Immigration (“the 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”).

8.  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 those APRC people upon his return to The Gambia as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence that he had been specifically targeted by the APRC people or any real intention on their part to harm or kill him, that in the absence of any reliable evidence of 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 show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2.4 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 part of The Gambia away from his home district such as Brikama or Bakau where it would be difficult if not impossible for those APRC people to locate him.

9.  By a Notice of Further Decision dated 3 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 18 May 2016, and for which he attended an oral hearing on 28 March 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found serious inconsistencies and contradictions in the Applicant’s evidence as to his account of political involvement and threats from the APRC people that raised concerns with the credibility of his claim, but even accepting that they were true that in December 2016 a UDP candidate won the presidential election on behalf of a coalition of opposition parties and that the ex-president, of the APRC, has since gone into exile, and with APRC no longer in power that there is no reason why the Applicant would face any risk of harm or persecution if refouled to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.      

12.  On 28 March 2018 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, and in his supporting affirmation of the same date he merely stated that he wanted to judicially review the decision because it was unfair and unreasonable but without providing any particulars or elaborations as to why it was so, nor did he put forward any other proper or valid ground for his intended challenge or request any oral hearing for his application either.

13.  By then he was also seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

14.  As the last day of the three-month period for him to file his Form 86 fell on 12 July 2017, the Applicant was therefore more than 8 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393. 

15.  In the Applicant’s case, a delay of more than 8 months must be considered as very substantial or excessive, for which he did not provide any explanation, and although it is noted that he may have been detained at Castle Peak Bay Immigration Centre (“CIC”) when he filed his Form 86, in the absence of any evidence from him that it might have been a factor for his delay, and that even if it were, the fact that he was still able to file his Form 86 from CIC that I am not satisfied that he has provided any good or valid reason for such a serious delay.

16.  As for the merit of his intended application, as noted above the Applicant did not put forward any proper or valid ground in support of his intended application.  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 for him to challenge the finding of the Board.      

17.  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.     

18.  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.

19.  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 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