CEESAY EBRIMA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2667/2018

[2021] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2667 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 Applicant being absent 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 9 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  In the affidavit in support of this application, the applicant requested a hearing, but he was absent on the hearing date.   I shall deal with his application on paper.

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

The applicant

4.  The applicant is a Gambian national.  He came to Hong Kong as a visitor on 6 July 2015.  He overstayed and surrendered to the Immigration Department on 13 October 2017.  He lodged his non-refoulement claim to the Immigration Department by written representations dated 16 and 19 January 2018.

5.  He claimed that if refouled, he would be harmed or killed by his father.  He is a Christian whilst his father is a Muslim.  His father, on behalf of the Militant Group, asked him to convert to Muslim and join the Militant Group.  He refused.  He had been to Ajan, Nigeria where he had stayed for two years before he came to Hong Kong.  That his father would kill him if he returned to Nigeria was what his friend told him.  He also believed that his father will do so as Muslims always get people convert to Muslim belief.  Details of the story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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

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

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 30 May 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to Gambia [12]; that state protection was available to him [17] and internal relocation was an option open to him [20].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 29 August 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that there was no evidential basis for him to assert that he was not safe in Gambia and that his claim in this regard was founded on hearsay.  Additionally, at the hearing, he conceded that he could live without fear in other areas of the country away from his home region. [117]  There was no state involvement in the applicant’s case. [140-141]  State protection would be available to him. [165]  Internal relocation would also be available to him. [200-201]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, he did not specify any specific grounds in support of his application.  He only said that he wanted an oral hearing for his judicial review.

DISCUSSION

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

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

“13.… …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.”

14.  His ground in support of this application does not assist his application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his 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