CEESAY OUSMAN alias CEESAY MICHAEL OUSMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 272/2021

[2026] HKCFI 2335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 272 OF 2021

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 26 July 2018 be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.   The Applicant is a 46-year-old national of the West African country The Gambia who last arrived in Hong Kong on 25 March 2010 as a visitor but was arrested by police on the next day of 26 March 2010 for trafficking in a dangerous drug and obstructing a public officer in the execution of his duty, and for which he was subsequently convicted and sentenced to a total prison term of 12 months, during which he raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by supporters of the political party Armed Forces Provisional Ruling Council (“AFPRC”) and/or the former AFPRC government as he supported their rival United Democratic Party (“UDP”) and/or the Jola tribe as he is from the Mandinka tribe.  

2.   The Applicant was born and raised in Banjul, The Gambia. After leaving school he worked as a carpenter in his home district to make his living, and supported UDP regularly attended their local meetings and activities.

3.  In about 2001, he together with his fellow UDP took part in a student protest in Banjul against the AFPRC government, during which the army fired gun shots at the protesters causing many casualties and fatalities amongst them, including the Applicant when he fell on the ground and fractured his leg, and soon the police moved in for mass arrests but the Applicant managed to escape from the scene and made his way home to seek medical treatments for his injuries.

4.  After the incident and to avoid being arrested, the Applicant departed the country for neighboring Nigeria to take shelter in the place of his father’s friend in Lagos, during which he also travelled to other African countries such as Congo and Kenya before returning to The Gambia in 2006.    

5.  Upon his return he soon learnt that UDP had lost again in the general election, and as he felt there was no hope in continue to support UDP and that he still feared of being arrested by the AFPRC government, the Applicant therefore departed The Gambia again for Thailand where he assisted in his brother’s business, during which he also made various trips to Hong Kong as a visitor.

6.  In his last trip to Hong Kong on 25 March 2010, he was subsequently arrested by police for trafficking in a dangerous drug and was subsequently convicted and sent to prison for 12 months, during which he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 25 October 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”).

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 his perceived enemies upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of any of his perceived enemies in him other than his own imagination or speculations never mind any intention of any of them to seriously harm or kill him, that in any event 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”) show that the former AFPRC government was defeated in the December 2016 general election and replaced by the current more democratic government headed by President Barrow who has since brought major reforms to the country and to promote human rights guarantee for its people that it is not accepted that the Applicant will face any risk of harm from any one upon his return to The Gambia, while there is no reliable evidence that the Applicant of the Mandinka tribe which is the major tribe in the country has ever faced any threats from the Jola tribe which is in fact amongst the minority in the country, and that if needed reasonable internal relocation alternatives are also available within the country 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

9.  On 6 November 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 2 May 2018 before the Board without any explanation, and in the absence of any response or reply to the subsequent written enquires from the Board for his absence or any request from him for another oral hearing, the Board proceeded to deal with his appeal on paper based on the materials and information submitted by him earlier to the Director and available in the hearing bundle before the Board.  On 26 July 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of fears of retaliation or arrest by the AFPRC government after the student protest in 2001 but found that such fears must have been dissipated over the years that his claimed fear of harm from his perceived enemies which even if still existed at all is entirely subjective, speculative, unrealistic and unjustified, and that in any event on the basis of relevant COI that the Applicant could not have any further doubt about his safety due to the subsequent change in the presidency and the ousting of the AFPRC as the ruling party after its defeat in the 2016 election, and that given the major reforms on human rights brought by the new government and the much improved situations within the country since the Applicant last left the country years ago that it is not accepted that he will face any risk from anyone upon his return to The Gambia that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 3 March 2021, 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 in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as his life is not safe in The Gambia but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.   

12.  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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 26 November 2018 after discounting the month of August 2018 for court’s vacation, the Applicant was therefore more than 2 years and 3 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.

14.  In the Applicant’s case, a delay of more than 2 years and 3 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and that it was only much later that he was so informed by his immigration officer, but by then he was already seriously out of time with his application.

15.  The record shows that the decision as sent on the same day of 26 July 2018 to his then reported address without being returned through undelivered post, and in the absence of any reliable evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a valid justification for his such serious delay.      

16.  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, and in the absence of any error of law or irrationality or judicial 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.

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 Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence from him as he failed to attend his appeal hearing before the Board without explanation but with the benefit of the relevant COI on the current situations in his home country, 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.

19.  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.

20.  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 or justification 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