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HCAL 1759/2018
[2021] HKCFI 1014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1759 OF 2018
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| Re: |
Gassama Bakary |
Applicant |
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Before: Deputy High Court Judge P. Li in Chambers
Date of Decision: 22 April 2021
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D E C I S I O N
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1. The applicant is a Gambian[1]. He came to Hong Kong on 13/8/2014. He overstayed until 13/11/2014 when he surrendered to the Department of Immigration. He filed this non-refoulement claim on 12/12/2014. [2]
2. The non-refoulement claim was dismissed by the Director on 4/7/2018.
3. The applicant appealed to the TCAB. He requested the TCAB to deal with his appeal without a hearing.[3] The adjudicator was satisfied that the choice was at his free will. She dealt with the appeal on paper. Eventually, the adjudicator dismissed his appeal on 16/8/2018.
4. On 28/8/2018, the applicant applied for leave for judicial review. He disagreed with the Director and the TCAB. He stated in his affirmation that the decision was unfair and unreasonable.
5. Deputy Judge Lung fixed a hearing on 10/10/2019. During the hearing, the judge refused to adjourn for the applicant to apply for legal aid. The applicant confirmed that he had made several applications to defer the interview before the Director on various grounds including that he was not satisfied with the interpreter.[4] The judge however found him proficient in English. The judge refused leave on 24/6/2020.
6. The applicant filed a summons on 26/8/2020 for extension of time to appeal against the decision of Deputy Judge Lung. He was 7 weeks out of time. He did not explain the delay in his affirmation.
7. In an application for extension of time to appeal, the paramount importance is the merit of the intended judicial review [5].
8. According to the evidence filed, the applicant was afraid that he might be harmed or killed by the NIA[6] or Sabally if he returned to Gambia.
9. The applicant won a scholarship for his tertiary education sponsored by Sabally who supported the APRC.[7] Sabally was once the Minister of Presidential Affairs. Sabally became his mentor.
10. From November 2012 to February 2014, Sabally asked him to pass some CCI[8] to the media in USA. It was to reveal the fault of the Gambian government. This task stopped eventually as Sabally was arrested by the NIA in March 2014.
11. Later, he was also arrested and tortured by the NIA. He was forced to sign a witness statement to be used against Sabally. He was then released.
12. At the end of April 2014, Sabally’s wife gave him some money to leave Gambia. He sneaked into Senegal before flying to China. He then came to Hong Kong as a visitor on 13/8/2014. When he was in Hong Kong, Sabally had once threatened to kill him if he returned to Gambia on the Facebook.
13. The adjudicator pointed out the doubtful points in the evidence of the applicant. The gist is as the following:[9]
(a) The evidence of the applicant was sketchy. There was no concrete detail about the nature of the CCI he had leaked. There was no newspaper report on the subject.[10]
(b) The applicant could not recall how he sent the CCI. He forgot about the name of the recipient and the password for the e-mail account.
(c) Sabally was arrested in March 2014 for abuse of office and economic crimes according to US Human Rights Report 2015. He was subsequently released and all charges dropped. He was then appointed as the director of the GRTS.[11]
(d) According to some news reports [12], Sabally was described as the right hand man and the mouth piece of the president. There was no report that he was arrested for leaking any CCI.
(e) Since the election in 2016, the president under whom Sabally worked had gone into exile. The APRC[13] was no longer the majority. It was unlikely that the applicant would be targeted for assisting Sabally.
(f) The NIA had been reformed after the 2016 election. Notorious officers were either arrested or sacked. The rest got human rights training.[14]
(g) There was reasonable State protection in Gambia. There were viable alternatives for relocation.
14. Given the above and in the absence of explanation, the adjudicator found that the applicant’s evidence was unreliable. He failed to establish the primary facts of the claim. It was unlikely that the applicant would be arrested or killed by the NIA. With the former president in exile, the CCI would not be of any value. The change in Gambian government made it less likely that the applicant would face torture.
15. Deputy Judge Lung agreed with the conclusion of the adjudicator.[15] He refused leave for judicial review. I agree with the decision of Deputy Judge Lung.
16. Given that there is no merit in the intended judicial review, coupled with the fact that there is no explanation of the delay, I dismiss his application for extension of time to appeal.
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(P. Li) |
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Deputy High Court Judge |
The applicant is unrepresented.
[1] He was born on 10/9/1993.
[2] While waiting for the result of his claim, he was sentenced to 34 months’ imprisonment for trafficking in a dangerous drug on 5/7/2017.
[3] Letter dated 23/7/2018.
[4] Wolof interpreter was requested.
[5] Jagg Singh [2020] HKCA 844, §§12—14.
[6] National Intelligence Agency.
[7] Alliance for Patriotic Reorientation and Construction.
[8] Confidential Country Information.
[9] Decision of the TCAB dated 16/8/2018, §§24—38.
[10] Despite he mentioned 2 newspapers in his written evidence.
[11] Gambian Radio and Television Services.
[12] Kironews, Guardianship and Independence.
[13] Alliance for Patriotic Reorientation and Construction.
[14] Reports by the Economist and the Point.
[15] Decision of Deputy Judge Lung dated 24/6/2020, §11.
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