TOURAY ALHAGIE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1691/2019

[2024] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1691 of 2019

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 submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, the applicant appeared before the Court on 24 April 2024.

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

The applicant

4.  The applicant, aged 52, is a Gambian.  He entered Hong Kong as a visitor on 13 October 2014.  He overstayed since 12 January 2015 and he surrendered to the Immigration Department on the same day.  The applicant made a non-refoulement claim on 23 January 2015.  The claim was made on the basis that, if refouled, he would be caught or even killed by the Gambian authorities because he was falsely accused of embezzling public funds due to his political affiliation with United Democratic Party (“UDP”).

5.  According to the applicant, he worked as a cashier with Gambia Public Transport Corporation (“GPTC”) between 1998 and 2007.  In around April 2007, he was falsely accused of embezzling public funds.  The applicant was of the view that such accusation was due to his association with UDP.  He quitted his job in around September 2007 and eventually left Gambia for Senegal on 9 September 2014.  On 11 October 2014, he arrived in China and subsequently entered Hong Kong from Guangzhou on 13 October 2014.

6.  The applicant was of the view that he could not seek protection from the authorities because his case involved public funds and they were the very body accusing him for the embezzlement.  Meanwhile, he had never considered internal relocation because he would receive severe penalties if he were caught.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 14 August 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

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

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the Gambian authorities indicated that he would not face a real and foreseeable risk of harm upon return [14]-[15]; (ii) state protection would be available to him upon his return [16]; (iii) internal relocation would be viable [17] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18]-[22], Persecution risk [23]-[28] or Torture risk [29]-[31].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 29 April 2019, the Board conducted an oral hearing.  The applicant was legally represented.

11.  The Board accepted that the applicant worked as a cashier for GPTC between 1998 and 2007 [40].  However, it had doubts regarding his false accusation claim [41] because (i) the false accusation happened in 2007, i.e. 9 years after he joined GPTC whereas he had been a UDP supporter since 1996 [42]; (ii) GPTC allowed him to continue working as a cashier and handling money while they were investigating the embezzlement [44] and (iii) the applicant had never been approached by the police or the other authorities [45].

12.  Given that no action was taken against the applicant for seven years while he remained in Gambia, the Board was satisfied that neither the GPTC, the police nor any other authorities were interested in him regarding the false accusation of embezzlement [46]-[49].  The Board therefore did not accept that the applicant would face a real risk of serious harm upon return to Gambia [50].  In any event, the situation in Gambia had much improved in human rights abuses and violations prevalent during President Jammeh’s ruling after the change of administration according to the country of origin information [51].

13.  Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [13]-[29], [54]-[59].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that he only wanted the Court to review his case.

18.  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.”

19.  For the reasons given by the Board above, the Board dismissed the applicant’s claim.  The applicant has raised no valid reason to challenge the Board’s Decision.

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  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