CAMARA LAMIN M v. TORTURE CLAIMS APPEAL BOARD

HCAL 1765/2019

[2024] HKCFI 1826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1765 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of The Gambia who arrived in Hong Kong on 20 April 2014 as a visitor with permission to remain as such for 3 months when he did not depart and raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to The Gambia he would be harmed or killed by the National Security Agency (“NIA”) for being suspected to be involved in activities considered as threats to the national security and/or by the Jola tribal people due to ethnical conflicts.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born of Mandinka ethnicity and raised in Village Bullock, The Gambia.  After leaving school he worked as a school teacher in his home village where his father was a member of the then dominant and ruling political party People’s Progressive Party (“PPP”), but after PPP was overthrown by a military coup in 1994 and the dictator Jammeh became the Gambian President, the Applicant’s father started to receive all sorts of threats from his enemies including members of rival political parties and people of other indigenous tribes in particularly the Jola tribal people, and was eventually murdered in 2000.

3.  As the Applicant suspected that his father was murdered by members of other rival political parties or the indigenous Jola tribal people, and so he started his own enquiry into who was behind the murder of his father, but for which he also received all sorts of accusations and threats from various political parties and the Jola tribal people.

4.  The Applicant however never reported those threats to the police or authorities for fear of reprisals from the then Gambian government headed by President Jammeh who was also from the Jola tribe.

5.  Due to those threats the Applicant in 2005 gave up on his enquiry as to his father’s death, and decided to focus on his own career by forming a NGO known as Association of Children and Society (“ACS”) to promote education and welfare of children in the country with emphasis on justice and humanity by giving talks and lectures to schools across the country.

6.  In 2012 he joined another NGO known as Nation Literacy and Debating Society (“NLDS”) as a vice president and attended their various meetings while running his own ACS.

7.  Soon thereafter he became suspicious of being spied on by other political parties and the Jola tribal people over his activities in ACS and NLDS, and one day in 2012 while he was on a public vehicle talking on his phone in Mandinka, he was attacked by a Jola man which led to a fight that he was subsequently expelled from the vehicle by the driver, of which the Applicant believed was stemmed from ethnical conflicts between Mandinka and Jola.

8.  In early 2014 the Applicant was summonsed to attend a meeting with the NIA and was interrogated for hours about his activities in ACS which was considered by the Jammeh government to be a threat to the national security, but was eventually released without charge.

9.  Several days later the Applicant was warned by a friend working for NIA that he was still being investigated by NIA that he should watch his steps, and one day while he was waiting at a bus stop, a car stopped in front of him, and that a man got out and approached him menacingly and threatening to kill him, but the Applicant immediately boarded the bus and managed to made his escape from the scene.

10.  Thereafter the Applicant started to become concerned that he had become a target of the NIA or the Jola tribal people that he felt it was no longer safe to remain in The Gambia, and so in early April 2014 he departed for neighbouring Senegal, and from there he travelled to China, and eventually on 20 April 2014 arrived in Hong Kong where he subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

11.  By a Notice of Decision dated 27 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”).

12.  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 the NIA or the Jola tribal people 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 who actually murdered his father or of any intention of anyone to want to harm or kill him for any political or ethnical reasons other than his own speculations or suspicions, that in any event that reliable and objective Country of Origin Information (“COI”) show that the former dictator Jammeh was defeated in the 2016 election and had subsequently left the country and gone into exile, and that the new regime of the current President Barrow had brought significant political and human rights reforms to the country that it is not accepted that the Applicant will still face any threats from anyone for political or ethnical reasons, and that state or police protection would be available to the Applicant upon his return to The Gambia if resorted to as well as reasonable internal relocation alternatives available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,300 square kilometers 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.

13.  On 6 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 24 December 2018 and 3 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

14.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s bare assertions of fear of harm from the NIA or the Jola tribal people without any supporting evidence that it doubted his claim of such fear that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence that his father had been murdered for any such reasons or that he had been so targeted for such or similar reasons other than his own suspicions or speculations that his claimed fear of such harm is not credible or plausible other than his own fabrications, and that in any event current relevant COI show that while there were serious human rights abuses by NIA and other authorities under the old regime when the dictator Jammeh was in power, the fact is that Jammeh had since gone into exile after losing the 2016 election and that his old regime has since been replaced by that of President Barrow that the human rights climate in the country has improved dramatically under new and substantial reforms brought by the new regime, and that the heads of the former NIA have all been removed and put on trials and with drastically curtailed powers of the new security services and with the new government holding themselves open to accountability and with important law reforms to the legal and judicial systems that there have been increasing returns of those once fled the country including journalists  back to the country that it is not accepted that the Applicant would face any risk of harms from anyone upon his return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.    

15.  On 26 June 2019 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 and just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  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 for his intended challenge.

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 vDirector of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 102 – 115 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as on the basis of relevant COI of the significant political changes in his home country under the new regime with much improved human rights reforms that even if his account of events under the former regime were true that it is not accepted that he will still face any of his claimed risks under the new and current regime upon his return to The Gambia, 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.

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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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