JOBE SAIDOU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1672/2019

[2024] HKCFI 2337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1672 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 4 January 2019.  His application was filed on 2 January 2024, which is late for more than 4 years and 11 months.  This issue will be dealt with below.

2.  The applicant asked for a hearing.  However, he was absent on the hearing day on 5 August 2024 without prior notice to the Court.  I shall deal with his application on paper.

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 38, is a Gambian.  He entered Hong Kong as a visitor on 22 September 2014 and he overstayed since 22 December 2014.  The applicant surrendered to the Immigration Department on 2 January 2015.  On 29 January 2015, he was arrested by the police for drug trafficking and was sentenced to imprisonment of 20 months on 17 September 2015.  The applicant made a non-refoulement claim on 21 December 2015.  The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by the Gambian government led by the Alliance for Patriotic Reorientation and Construction (“APRC”) because he had conflicts with APRC members during the presidential election campaign in 2011 (“the Campaign”).

5.  According to the applicant, he joined the National Reconciliation Party (“NRP”) on 6 June 2009.  In June 2010, he became one of the four leaders of the Youth Mobilising Group of the NRP.  In June 2011, the applicant together with his fellow NRP members had conflicts with APRC supporters on several occasions during the Campaign, which involved fighting and throwing of stones.  Eventually, APRC turned out to win the election.

6.  On 15 June 2012, three officers from the National Intelligence Agency (“NIA”) took the applicant to the NIA office, where he was interrogated as to his involvement in anti-government activities.  Thereafter, he was locked up at the NIA detention centre.  The applicant was questioned again on 19 June 2012, after which he was released unconditionally the next day.

7.  On 9 June 2014, the applicant was informed by his news reporter friend that two of the leaders of the NRP Youth Mobilising Group (“the two leaders”) were arrested at their respective homes due to their participation in the anti-government activities during the Campaign.  As the applicant was also on the wanted list as informed by his friend, he no longer felt safe in Gambia and therefore left for Senegal illegally on 10 June 2014.

8.  The applicant contacted his father while in Senegal, who warned him that the Gambian government was still looking for him.  The applicant had grave concern about his safety as Senegal is very close to Gambia.  Upon arrangement by his father, the applicant managed to renew his passport and to manipulate the date for leaving Gambia.  On 12 September 2014, he left Senegal for China.  On 22 September 2014, he arrived in Hong Kong from Shenzhen by train.

9.  When the applicant last contacted his father in January 2015, he was told that the two leaders were jailed for their anti-government activities in the Campaign.  The applicant did not report the matter to the police because he believed that they sided with the government.  He considered internal relocation not viable as well because NIA might come to know his whereabouts given that Gambia is not a big country.  He also felt that he could be easily recognised due to his publicity and hence could not hide anywhere within the country. 

10.  In the additional facts provided by the applicant, he further claimed that his father was arrested and tortured by the Gambian authorities seeking information on his whereabouts.  The applicant also added that he was actively involved in an anti-government movement (“the Movement”) in 2013, where members were being targeted and arrested by the government.

11.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 August 2016 (“the Director’s 1^st Decision”) and paragraph 3 of the Director’s Decision dated 11 August 2017 (“the Director’s 2^nd Decision”).

The Director’s Decisions

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

(a)     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”);

(b)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)     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”); and

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

13.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the Gambian government indicated a small future risk of harm upon his return [12]; (ii) state protection would be available and there was no evidence that the applicant would be put to jail without a fair trial [13]-[16]; (iii) internal relocation would be viable [17]-[21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [23]-[25], Persecution risk [26]-[29] or Torture risk [30]-[32].

14.  By way of the Director’s 2^nd Decision,the Director dismissed the applicant’s claim.  The Director found that there was no indication that the applicant was targeted by the Gambian government even with his claimed involvement in the Movement [6].  The Director therefore rejected the applicant’s claim on BOR 2 risk.

The Board’s Decision

15.  The applicant appealed the 1^st and 2^nd Director’s Decisions to the Board.  On 11 September 2018, the Board conducted an oral hearing.

16.  During the hearing, the applicant demonstrated a lack of real knowledge towards NRP despite claiming that he was one of the four leaders of their Youth Mobilising Group and was unable to provide details about the political activities that he was involved in [45]-[49].  The applicant also provided inconsistent evidence about his detention at NIA detention centre, where he claimed that he was being tortured [50]-[53].  Furthermore, the applicant was vague as to when, how and by what manner he left Gambia [54]-[58].  He also failed to corroborate his claim of being a high profile national leader of NRP [59]-[61].

17.  The Board found the applicant’s assertions were entirely unreliable and could be given no credence whatsoever [63].  In any event, the country of origin information showed the coming to power of a coalition including the NRP and that its leader had become a minister in the government.  There was also a restructuring of NIA [64]-[65]. The Board considered there was no reason for the new regime to target the applicant upon his return given that he was their supporter [67]-[68].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [70]-[73].  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

19.  The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

21.  As mentioned in paragraph 1, this application is late.  In AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

23.  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.”

24.  For the reasons given above, the Board found that the applicant was not a reliable witness and it rejected his evidence.  The applicant fails to raise any valid reason to challenge the Board’s finding of the facts.

25.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

26.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.