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HCAL 1627/2019
[2021] HKCFI 1122
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1627 of 2019
BETWEEN
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Jawara Isa |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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 P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant had visited Hong Kong several times since 2008. In 2010, she came to Hong Kong again. She successfully applied for several extension of stay.
2. On 4/7/2011, her application for extension was refused. She overstayed until 20/12/2011 when she surrendered to the Immigration Department.[1]
3. On 31/3/2012, she married a Hong Kong permanent resident. She applied for dependent visa on 1/11/2012. She was voluntarily repatriated to Lagos, Nigeria on 27/1/2013. The application for dependent visa was withdrawn by her husband on 9/12/2013.[2]
4. On 14/3/2014, she returned to Hong Kong as a visitor.[3] She overstayed and surrendered to the Immigration Department on 15/4/2014.[4] She raised the non-refoulement claim of this case on 19/6/2014.[5]
5. Her non-refoulement claim was rejected by the Director on 27/6/2017. Her appeal to the TCAB was rejected on 5/10/2018.
6. She filed a leave application for judicial review on 14/6/2019. She was out of time for over 5 months.
7. The applicant feared that she might be harmed or killed by her family if she returned to Gambia or Nigeria. Her family disapproved her conversion to Christianity. Her family was very strict in Islamic belief.
Background [6]
8. The applicant was born on 26/9/1972. She was from Demba Kunda, Gambia. Her family moved to Nigeria in 1977. Her father had passed away in 2012. Her mother lived in Nigeria. Some family members lived in Gambia. Her family was Muslim.
9. In the 1990s when she was in high school, she indicated to her parents that she would like to become a Christian. Her father was furious and disapproved. He assaulted her. She did not seek medical treatment. She did not seek help from other authorities as her father threatened to disown her.
10. Around 1997, she was arranged to marry a Muslim. It was a religious marriage and not legally registered. However, she could not get pregnant after several years. Sometime after 2000, her husband was arranged to marry her cousin. She left her husband and lived with friends in Lagos, Nigeria.
11. About 2009, she became a Christian. Her father was angry and threatened to kill her. Her uncle and aunt might also harm her.
12. She visited Hong Kong from time to time during 2008—2010.[7] She eventually got married with her husband in Hong Kong in 2012. Her husband was a Hong Kong permanent resident. She gave birth to 2 children in 2010 and 2012. She did not apply for non-refoulement protection then as she was ignorant about the scheme.
13. She returned to Lagos in January 2013 for a year. She was safe there. She returned to Hong Kong in February 2014.[8]
14. She could be located in Gambia. The government would not assist as it was a family issue. She could not bring her children to Gambia. It was not safe for them. It would be difficult for Christians to live in Gambia as they were the minority.
15. She had congestive heart failure. There would not be medical treatment in Gambia or Nigeria. However, she had not tried to seek treatment there.
Decision of the Director of Immigration
16. The Director concluded that the risk of harm from her family was low. The reasons were:
(a) The assault from her father took place in the 1990s. It was just some slaps. There was no further assault since her marriage and conversion to Christianity. She was safe in Lagos for a year in 2013. There was no evidence to prove any ill-treatment which amounted to a minimum level of severity.
(b) She had not sought any medical treatment concerning her congestive heart failure in Gambia or Nigeria. According to the research of the Director, there were specialist clinics and hospitals which offered services in both countries in 2016.[9]
(c) The Director accepted that there was corruption problems and human rights abuses in Gambia. There was general mistrust of the police. Similar problems occurred in Nigeria without effective control from the government. On the other hand, there were reports that the Gambian government did enforce protections in human rights and fundamental freedoms enshrined in the constitution. There was a National Human Rights Unit under the Ombudsman Office which promote and protect human rights. The Truth and Reconciliation Commission was set up for people to seek justice and compensation against misconduct under the rule of the ex-president. Freedom of religion and freedom of the press would be respected by the government. In Nigeria, the NHRC and ICPC[10] were set up to tackle human rights abuse and corruption. The Nigerian government promoted freedom of religion. The Director was satisfied that there was reasonable State protection in both countries.[11]
(d) Both Gambia and Nigeria permitted internal relocation. They were large countries with huge population. It was difficult for her family to locate her. In fact, she was in Lagos in 2013. It would be reasonable for the applicant to relocate to Banjul in Gambia or Lagos in Nigeria.
(e) She was not targeted by the State. She could travel freely. There was freedom of religion in both countries.
17. The Director dismissed her claim based on BOR 2, BOR 3, persecution and torture risk.[12]
Decision of the Torture Claims Appeal Board
18. There was a hearing on 26/7/2018. The adjudicator rejected her appeal based on the following findings:
(a) The adjudicator found that the focus of her claim was the fear of her life from relatives in Gambia. In reality, she was a Nigerian citizen and had been living in Nigeria since the age of five.
(b) The applicant returned to Lagos, Nigeria in 2013 and stayed there safely for a year. She had no intention to return to Gambia. There was no objection from her mother in relation to her religion.
(c) The applicant did not file any non-refoulement claim before 2013. She only did so after she returned to Hong Kong in 2014. It appeared that her main concern was her children but the proper channel should be to apply for dependent visa.
(d) The applicant admitted that she was not baptized to become a Christian. However, she would practice Christianity albeit informally.
(e) The applicant admitted that she could live in Lagos. She could speak Fula and Jorubei in addition to English. It was reasonable for her to relocate to Lagos. She had lived there safely from time to time since 2008.
(f) The applicant confirmed that even if she returned to Gambia, there was no need to contact her relatives. She could also stay away from her relatives who lived at Ibadan, Nigeria.
(g) In fact, Christianity was predominant in the south of Nigeria and Islam was the majority in the North.
19. The adjudicator opined that there was no evidence that the applicant would be harmed by any public official. There was no evidence of arbitrary deprivation of life. There was no ill-treatment amounting to ‘a minimum level of severity’. There was no real chance that she would be persecuted on any Convention grounds.
20. The adjudicator rejected her appeal on 5/10/2018.
Judicial Review
21. The applicant filed the leave application for judicial review on 14/6/2019. In the affidavit in support of the application, she did not mention any specific error in the decision of the TCAB.
Out of Time Leave Application
22. The applicant was out of time for over 5 months. She should have first sought an extension of time to file the leave application.
23. The applicant did not apply for leave within 3 months as required under the law, the delay is substantial. She did not provide any explanation for the delay. In considering whether there is any good reason for the delay, I have considered the length of the delay, the reasons for the delay and the merits of the leave application. [13]
24. This court set a hearing on 2/2/2021 on her request. In the hearing, the applicant indicated that she had nothing to update. She confirmed that her father had passed away in 2012. There was no risk for her to return to Lagos, Nigeria. She also confirmed that she had applied for dependent visa again in 2015. The result was pending. She wanted to stay in Hong Kong with her children.
25. I agree with the adjudicator. The applicant was safe in Lagos. Her father had passed away. She could practise Christianity on her own. The proper channel was for her to apply for dependent visa.
26. There is no error of law or procedures. The decision of the TCAB is rational. The intended leave application is without merit.
Conclusion
27. In my judgment, there is no good reason for an extension of time for the leave application. The leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 27th day of April 2021.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 27 April 2021
Jawara Isa
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7707/17/7/88/GA54
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 551/17
(formerly RBCZ 3001052/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was sentenced to imprisonment for 2 weeks suspended for 3 years for overstaying.
[2] The applicant explained that the relationship turned sour because her husband could not support her spending habits. Decision of the TCAB dated 5/10/2018, §§41—43.
[3] The relationship resumed with her husband sponsoring her in a new application for dependent visa in 2015. See footnote 2.
[4] She was allowed to stay until 11/4/2014.
[5] Decision of the Director dated 27/6/2017, §§9—10.
[6] Decision of the Director dated 27/6/2017, §§7.1—7.38.
[7] She could not explain the reason behind. Decision of the Director dated 27/6/2017, §7.12. and Decision of the TCAB §23.
[8] See footnotes 2 & 3 above.
[9] Decision of the Director dated 27/6/2017, §17.
[10] National Human Rights Commission and Independent Corrupt Practices Commission.
[11] Decision of the Director dated 27/6/2017, §§18—19.
[12] Decision of the Director dated 27/6/2017, §§21—29.
[13] [2020] HKCFA 22, para 37.
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