BAJAKA SEEDY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1979/2018

[2021] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1979 of 2018

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;

1.  the application for leave to apply for Judicial Review be reinstated;

2.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 June 2018 be refused; and

3.  leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of The Gambia who arrived in Hong Kong on 30 June 2014 with permission to remain as a visitor up to 10 February 2015 as extended but thereafter he did not depart and instead overstayed, and on 2 March 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by a customer of the bar where he had worked over some billing dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jalambere, The Gambia. After leaving school he worked as a farmer in his home district and married his former wife whom he had later divorced.

3.  In 2009 he moved to the city of Serrekunda and worked as a bartender. In 2011 he had a dispute with a customer by the name of Yokouba Bagil (“Bagil”) over certain bill payments, and after he heard that Bagil was a senior member of National Intelligence Agency (“NIA”) who had become angry with him and was planning of making a false charge to the police that he was gay which is a criminal offence in The Gambia, the Applicant fled to Congo where he stayed for 2 years without incidents, but as he still felt it was not safe there, he therefore travelled to Hong Kong in June 2014 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 May 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  While released on recognizance pending determination of his claim, the Applicant was hospitalized and was diagnosed with pulmonary tuberculosis for which he had commenced medical treatment, and has since also married a local resident.      

5.  By a Notice of Decision dated 4 August 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Bagil upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence that Bagil was indeed a member of NIA or that he had indeed made any false charge against the Applicant, that it was in any event a minor private dispute between them that it is doubtful after all these years that Bagil would still have any adverse interest in the Applicant, that in the absence of 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”) shows that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a 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 parts of The Gambia away from his home district such as Basse District where it would be difficult if not impossible for him to be located.

7.  On 10 August 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 10 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found significant political situations in The Gambia have changed since the 2016 election when former President Jammeh was defeated and had left the country on exile, and with the new President Barrow instigating many reforms in rule of laws and human rights as well as significant changes to various government departments including NIA that it is unlikely that Bagil even if he still remained as a senior member would still have any adverse interest in the Applicant after all these years over such a minor dispute between them, that there is no evidence of any false charge being made against the Applicant for being gay and even in the most unlikely event that it had been made that in the absence of any evidence that he is gay that the Applicant should have no difficulty defending such charge, and that in the absence of any medical evidence that he still requires medical treatment in Hong Kong for any medical condition that he would not be able to obtain in The Gambia that it concluded that the Applicant will not face any proscribed harm upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.   

9.  On 19 September 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 the decision is unfair and unreasonable but without providing any details or particulars or elaboration how it is so or any other ground for his intended challenge.

10.  Before his application could be dealt with by the court, the Applicant on 11 March 2020 filed an affirmation to request to “cancel” his application, which this court allowed on 18 March 2020 and treated his application as withdrawn.

11.  Eight months later the Applicant by a summons issued on 10 November 2020 requested to “re-open” his application, and at the hearing of his summons he just stated that his problems still exist in his home country, and as he now has a family in Hong Kong, he just wants to stay here, and hence he finds it necessary to proceed with his application for judicial review of the Board’s decision in dismissing his appeal regarding his non-refoulement claim. 

12.  As the merits of his leave application had not been dealt with when he was earlier allowed to withdraw it, and in order to save time and costs, I acceded to his request to allow him to restore his leave application, which was however in fact out of time when he first filed his Form 86 on 19 September 2018, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that such application 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 7 September 2018, the Applicant was therefore about 12 days 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.    

14.  In the Applicant’s case, a delay of 12 days may not be regarded as significant, for which he has not provided any explanation. Given that the Applicant was by then unrepresented and that the delay was relatively insignificant, I propose to focus on the merits, if any, of his intended application.

15.  However, as noted above, the Applicant has not put forward any proper ground for his intended challenge. 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 or merits in his intended application.

16.  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.

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

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 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