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HCAL 2479/2018
[2020] HKCFI 1283
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2479 of 2018
BETWEEN
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Jallow Tijan |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Respondent |
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 K.W. Lung:
Leave to apply for Judicial Review be granted.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicialreview of the Decision dated 7 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as the respondent.
The applicant
3. The applicant is a Gambian national. He had come to Hong Kong on 3 September 2014 as a visitor and he overstayed since 3 December 2014. He surrendered to the Immigration Department on the same day. He lodged his non-refoulement claim on 2 January 2015. On 11 November 2014, he was convicted of the offence of possession of dangerous drug and was fined $2000. On 29 July 2015, he was convicted of the offence of trafficking in dangerous drug and sentenced to 12 months’ imprisonment.
4. He claimed that if refouled, he would be harmed by his brother Jallow Lamin (“Lamin”) due to a land dispute. He also feared that the Gambian government would persecute him if he returned to Gambia because he is a homosexual. He claimed to be responsible for greeting the European tourists coming to Gambia, which was arranged by his friends. As some of the tourists were gay, the people in the home town believed that he was also from the same category and the government would send him to jail. He was not gay actually but he was in fear of being sent to jail by the Gambian government. This was only his belief. See 6.15 of the Director’s Decision dated 17 November 2015.
5. The land dispute between him and his brother, Lamin arose because their late father who passed away in 2014 had left to them two pieces of land, one to him and the other to Lamin. He asked for his piece of land. However, Lamin said that he was entitled to both pieces of land because he was the eldest son. Lamin had uttered death threats, but he did not assault the applicant. Later, when he claimed the land again, Lamin had thrown stones at him and on one occasion had grabbed a knife to threaten him, causing a scratch on his left arm. His mother intervened and Lamin ran away. He did not report this incident to police. He later came to Hong Kong on 3 September 2014.
The Director’s Decisions
6. 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”).
7. By Notice of Decision dated 17 November 2015 and Notice of Further Decision dated 15 June 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of being harmed or killed by Lamin upon his return was assessed to be low [12]; state protection would be available to him [15]; internal relocation was an option open to him [18]; his fear of being imprisoned by the government upon his return because he was a homosexual was remote because he declared at the interview that he was not a homosexual and there was no reasonable likelihood that he would be targeted by the Gambian government as it was only a rumour [20].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 16 July 2018.
9. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.
10. The Board considered the applicant’s evidence and was of the view that as to his alleged fear of harm due to suspicion of being a homosexual, the Board considered that it was an asserted speculation with no evidence to support. It dismissed it as a basis for his claim [2.2].
11. As to his fear of his brother, whilst the Board did not challenge the facts he alleged, it found that the case was a private dispute over private land, the government was not involved [7]; that it did not believe that Lamin would still be interested in him and tried to locate him [18]; his situation fell far short of establishing BOR 3 risk [23] or BOR 2 risk [25]; and that there was no substantial ground to support any future risk of persecution [29].
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 6 November 2018 for leave to apply for judicial review of the Board’s Decision.
13. He relied upon the grounds below in support of his application. He referred to the Director whereas the respondent is the Board. I shall set out his grounds and apply them, if applicable, to the Board as he is not represented.
1. The Director and the Board reached wrong decisions as their decisions are unreasonable and unfair. In addition, the Board did not give him sufficient time and chance to arrange relevant evidence for his appeal.
2. The Director had no attention to the issue of state acquiescence.
3. The Director had not considered his argument and had not given sufficient weight to the country of origin information in his favour.
4. The Director had failed to attain high standards of fairness.
DISCUSSION
14. The applicant appeared before me and he submitted that he was in jail custody when he attended the appeal hearing. It was through the video link he appeared before the Adjudicator. He said that the Adjudicator had asked him if he had any further evidence in support of his case. He told the Adjudicator that he would have the evidence if he was discharged from jail. At that time, he did not have any further evidence.
15. At the hearing before me, he produced two documents, one is headed “Gambia Police Force Office of The Criminal Justice” dated 20 October 2014, which appeared to be the original copy showing that the applicant was wanted for being involved in Homosexual activities and that he would be prosecuted accordingly by the court of law and would be sentenced to life imprisonment with hard labor if found guilty. The other one is a newspaper entitled Daily Observer dated 8 January 2015, which showed his photograph. The newspaper reported that the public relations officer of the Gambia Police Force revealed that the homosexuals provided service to European tourists might face life imprisonment. He was shown in the photograph as one of them.
16. The applicant asked this Court to consider the above documents. He submitted that he had lied to the Immigration officer and the Adjudicator as he told them that he was not a gay. He further said that he was reluctant to admit that he was gay because he is a Muslim. He was unable to obtain the evidence as he was being detained in prison. Now he had obtained the above documents showing that he might face Persecution risk if he returned to Gambia, he would rely on this ground in support of his application.
17. Applying the legal principles in Ladd v Marshall [1954] 1 WLR 1489, I am satisfied that prima facie, the evidence, if admitted, will be good ground in support of his claim on Persecution Risk and that he was unable to obtain them at the relevant time. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that the finding of the fact, such as the authenticity of the documents will be the duty of the Immigration officer and the Adjudicator and this Court has no power to make the investigation. I shall leave the issue of the evidence to the Adjudicator.
18. It seems, therefore, that the Board had not taken into consideration of the said two documents, which should be considered, before deciding that there was no evidence in support of his homosexual issue claim, which amounts to Wednesbury unreasonableness.
CONCLUSION
19. I therefore grant leave to the applicant to apply for judicial review. He should take out the application in accordance with Order 53, rule 5 of the Rules of the High Court, Cap. 4A within 14 days of the date of this Order.
20. I also grant leave to the Director, the Board and the applicant to have inspection of the said two documents from the Court.
Dated the 23rd day of June 2020
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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 23/6/2020
Jallow Tijan
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 23/6/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Respondent’s ref. no.:
USM 2698/15/12/27/GA12
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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