CEESAY ABDOULIE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2673/2018

[2021] HKCFI 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2673 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a Gambian citizen. He came to Hong Kong on 13 August 2014 as a visitor. He overstayed and surrendered to the Immigration Department. He lodged a non-refoulement claim on the same day.

5.  He claimed that if refouled, he would be ill-treated by the Gambian government due to his breach of the Gambian law. His family house was damaged by a storm. He went to the forest nearby and cut some trees for its repair. However, his parents told him that it was forbidden to cut trees for own use and the government would arrest anyone who did this. He was scared and decided to leave home for Hong Kong. Details of the story are set out in paragraph 7 of the Director’s Decision as described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 30 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated as it was not accepted that the Gambian government had real intention to harm or kill him upon his return to Gambia [14]; that there was no evidence to show that the Gambian government would not enforce the law fairly [15.4].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision. The Board, having considered the authority of ST v Betty Kwan & Ors, CACV 115/2013 §§20-54, and for the reason that the applicant’s factual basis being accepted, but was found insufficient to make out a case, decided that it was not necessary to hold a hearing for his appeal.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that even though the facts were as the applicant alleged, the offence only imposes a fine of Dalasi 6,000 and 12 months’ imprisonment. Either way, the offence hardly seems a serious one. The facts do not suggest that there is any likelihood that the Gambian government or anyone else is likely to kill the applicant, torture him, subject him to BOR3 risk or persecute him. For those reasons, the Board rejected his appeal on his claim on all the risks under paragraph 6 above. [41-57]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 26 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he wanted a determination without hearing.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

16.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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