JALLOW MOMODOU Y v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2946/2018

[2020] HKCFI 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2946 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.  The applicant is a national of Gambia. He arrived in Hong Kong on 6 October 2014 and was permitted to stay until 4 January 2015. He overstayed. On 9 January 2015, he surrendered to the Immigration Department. On 23 January 2015, he lodged a non‑refoulement claim. Between February 2016 and January 2017, he committed dangerous drugs offences and was sentenced to imprisonment.

3.  He claimed that if refouled, he would be harmed or killed by the Government of Gambia through the National Intelligence Agency (“NIA”) because he was a member of political party known as the People’s Progressive Party (“PPP”). He claimed that his uncle and father were arrested and detained for no reason and he believed that the NIA are still looking for him.

The Director’s Decision

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

a. risk of torture under Part VIIC 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 under RC”).

5.  By Notice of Decision dated 12 April 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

6.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 15 March and 3 September 2018 respectively.

7.  By Decision dated 29 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

8.  The Board considered the applicant’s case and it concluded the facts below.

1. Considering the evidence, the Board found that the applicant had only made bare assertions whose reliability and authenticity could not be tested and he presented no objective proof to support them [99].

2. The applicant produced hearsay evidence [103 & 182].

3. The Board further tested his evidence by comparing his evidence to the Immigration officer and at the hearing and the fact that he had made admission at the hearing but refused to answer a question [104].

4. The applicant was evasive in answering the questions, thus reducing his credibility [161].

5. The applicant did not produce any evidence to support his beliefs that he would be harmed if he returned to Gambia; that the government would still be interested in him after four years of his departure; that he could not relocate himself [116].

6. The government through the NIA had never inflicted any physical harm on him and the threats he alleged was only hearsay from his brother [116].

7. There was no evidence to show that state protection was not available to him [123].

8. There was no evidence that the government was involved as he was able to obtain a passport and leave Gambia without any problem [126].

9. The applicant would not be subjected to any harm if he returned to Gambia [128].

Application for leave to apply for Judicial Review

9.  In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

10.  The applicant relied upon the grounds in support of his application below.

1. The approach to assess credibility by the Board was unfair and incorrect.

2. The Board did not specify any explanation or evidence to support its finding of his credibility, referring to paragraphs 104 and 161 of the Board’s Decision. The Adjudicator therefore used his subjective personal impression to assess his credibility.

3. The Board failed to give sufficient reasons or clear finding on the plausibility of each of the identified material facts in support of its findings.

4. The Board relied upon his demeanour to assess his credibility – a subjective impression approach.

5. The Board was wrong not to attach any weight to the hearsay evidence and his evidence, which the Adjudicator described as bare assertions in paragraph 99, which is inconsistent with the UNHCR Handbook: “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit to the doubt.”

6. Therefore, the Board had raised an unreasonable high evidential threshold in its assessment of his evidence.

DISCUSSION

The Board’s Decision

11.  The applicant appeared before me. He complained that there was no interpreter at the screening interview. His lawyer had to adjourn the meeting from time to time so that they might go outside the interview room to clarify his instructions. He had an interpreter at the Board hearing. The Board had a hearing de novo of his case.

12.  I checked with the applicant the facts he relied upon for his application as set out in the Board’s Decision. He confirmed those were the facts he relied upon and there was nothing that he wished to add to them.

13.  The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at paragraph 21 held:

“Unless there are good reasons to the contrary, benefit of the doubt should be given to the applicant for the credibility of the facts.”

14.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held:

“42. The Board’s decision is final.”

“47. …To the extent that this depended on an assessment of the applicant’s credibility the board was perfectly entitled to come to the adverse conclusion that it did, namely that the applicant was a liar who was seeking by his falsehoods to advance his interests.”

15.  The question hinges upon the way the Adjudicator had assessed the applicant’s evidence. In the Board’s Decision, the Adjudicator had set out the legal principles and the reasons that he adopted for the assessment of the applicant’s credibility. See paragraphs 96-113. It appears that he was alive to those legal principles when he assessed the evidence given by the applicant.

16.  Grounds (1) is the applicant’s opinion without supporting evidence.

17.  Ground (2) refers to paragraphs 104 and 161 of the Board’s Decision. In these two paragraphs, the Adjudicator set out his approach of assessing the applicant’s evidence, pointing out the deficiency of his bare assertions, which he was quite entitled to do.

18.  It is also wrong to say that the Board did not give reasons for its findings. For example, when it did not accept that the applicant faced a high-risk of harm should he return to Gambia, it set out the reasons that the applicant had left the country for other places and returned without any problem and that he was able to obtain his passport without difficulty; and finally, it found that the APRC were no longer in power and PPP, the party he supported shared power in a coalition government. See paragraphs 118-120.

19.  The Board is not obliged to give detailed reasons for each and every piece of facts it did not believe. It may give reasons in support of the general impression of the quality of the applicant’s evidence. When it came to the crucial evidence in support of the applicant’s claim, it should give sufficient reasons, such as paras 118-120, which the Board had done. Ground (3) fails.

20.  Grounds (4) and (5) can be considered together. The Board was entitled to and did consider the applicant’s demeanour in its assessment of the applicant’s evidence. It commented that the applicant was evasive in giving evidence and he refused to answer a question. The applicant did not dispute that he refused to answer a question. There was no reason for not answering the question. In my view, the Adjudicator was entitled to draw adverse inference against the applicant’s credibility under such circumstances. See Li Defan & Another v HKSAR (2001) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217:

“… it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it….”

21.  Ground (6) fails as whether or not the Board accepted the applicant’s evidence, which is a matter of discretion for the Adjudicator, has nothing to do with raising of the evidential threshold.

22.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.  Since the applicant’s application for the intended judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the 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