GASSAMA BAKARY v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1759/2018

[2020] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1759 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 oral submission by the Applicant 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 16 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 10 October 2019.

3.  Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) from the column for respondent and replacing him with the Board and by adding the Director in the column for interested party.

The applicant

4.  The applicant is a Gambian national. He had come to Hong Kong as a visitor on 13 August 2014 and was permitted to stay until 11 November 2014. He overstayed and surrendered to the Immigration Department on 13 November 2014. He lodged a written application for non-refoulement on 12 December 2014. He was released on recognizance. On 18 August 2016, he was arrested by police for trafficking in dangerous drugs. On 5 July 2017, he was convicted of the offence and was sentenced to 34 months’ imprisonment.

5.  He claimed that if refouled, he would be harmed or killed by the officers of the National Intelligence Agency (“NIA”).

6.  The incidents took place between November 2012 and August 2014 as set out below.

a.  He came across a person called Sabally, who sponsored him for his tuition fees and living expenses for his college course. Sabally was a supporter of Alliance for Patriotic Reorientation and Construction. In November 2012, Sabally asked him to pass top secret information in the Cabinet to some designated media, some based in the United States. Sabally told him the purpose was to reveal the fault of the Gambian Government. He was paid to do it.

b.  Sabally was promoted to the position of the Minister of Presidential Affairs. The opposition suspected him to be a subordinate of Sabally.

c.  In February 2014, Sabally told him that he was suspected to be the whistle blower. He took the records kept in his laptop. However, he was told by Sabally’s mistress that Sabally was arrested for abuse of his power.

d.  Later, he was arrested by the NIA officers and was taken to a detention centre where he was interrogated. At first, he refused to say anything. He was tortured by being kept alone and beaten by sticks and punches. He was subsequently told to sign on a document, which he considered to be a statement for testimony against Sabally. He was released after signing the document.

e.  At the end of April 2014, he was told by Sabally’s wife that he had to leave the country or he would be in danger. She had given him some money for leaving.

f.  He had gone to other places so as not to attract the attention of the Customs. On 5 August 2014 he left Gambia and on 13 August 2014 he arrived at Hong Kong.

g.  He later learned from Sabally through the Facebook that he should not return to Gambia or he would be killed. He learned that Sabally had shifted the blame on him by saying that he was leaking the information for the applicant.

The Director’s Decision

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

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

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”).

8.  By Notice of Decision dated 4 July 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director assessed his evidence and for reasons given that his request for protection was delayed; his evidence was vague and his uncooperative attitude [35-41], he considered that the applicant was not a truthful witness and his story was an invention [41].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. He asked the Board to assess his application without a hearing. The Board acceded to his request.

10.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and for the reasons given [24-37], it came to the conclusion that it was unlikely that the NIA would be interested in him [36] and that it would be unlikely that he would face the risk of being tortured [38]; state protection should be available to him [44] and internal relocation was an option open to him [70].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 dated 27 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of this application, he did not state that the Board had committed any error in reaching its decision. He only complained that the Board’s Decision was unfair and unreasonable.

DISCUSSION

14.  The applicant appeared before me and he applied for the hearing to be adjourned to another date because he would like to apply for Legal Aid. He had obtained the application forms and guidelines. He was asked why he considered this service at this late stage. He said that he knew about the service as he was legally aided for his criminal case. But he was ignorant of this service for this application.

15.  I refused his application for the reason that I was not satisfied with his explanation. Also, his ex parte application did not call for a hearing. This is an invitation by the Court for him to assist it. The Court can obviously assess his application without his assistance. To adjourn the hearing would cause delay for other cases. I asked the applicant if he was willing to assist me for the assessment of his application. He agreed to assist.

16.  He confirmed that he had made nine applications for postponement of his interview with the immigration officer, based upon the reason that he needed an interpreter for him. However, I found him to be proficient in English and he understood the Board’s Decision. He was represented by a duty lawyer. But he was not quite satisfied with his service. He admitted that he had written to the Board for not attending the hearing. He had also asked the Board to assess his appeal on the materials available. The Board acceded to his request.

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

“13. (1) … …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.”

18.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the 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