MANNEH CHERNO v. TORTURE CLAIMS APPEAL BOARD

HCAL 683/2025

[2025] HKCFI 2547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 683 OF 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

(1)  Extension of time for the application for leave to apply for Judicial Review be granted;

(2)  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 22 March 2023 be granted;

(3)  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4)  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of the West African country The Gambia who entered Hong Kong illegally on 22 April 2019 and surrendered to the Immigration Department 2 days later on 24 April 2019 when he raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or persecuted due to his sexual orientation as a gay man in the predominantly Muslim country where same-sex sexual activity is prohibited by the law punishable by lengthy imprisonments. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Latri Kunda Sabiji, The Gambia. He received formal education only up to primary 4 when he quitted school after he was discovered to be gay and was shunned by his family and his friends that caused him to be physically and emotionally vulnerable, and whereupon he made his living by operating a small shop trading in electronic products in his home district.

3.  One day in December 2018 he met a white gay man from the US who invited him to his hotel, but when they were seen kissing each other while on their way to the hotel room where the white man was staying, they were shouted at by other people in the hotel with threats and abuses, who then started to chase after them with sticks and other weapons as homosexuality is not permitted or accepted by the predominantly Muslim population either religiously or culturally, and as same-sex activity is also prohibited by law in The Gambia, but the Applicant managed to escape from the scene to run back to his home unharmed.

4.  After the incident the Applicant never saw that white man again, but had since become fearful for his safety, and so on 31 December 2018 he left the country for China, and on 4 April 2019 he travelled to Hong Kong but was refused entry and was returned to China, and on 22 April 2019 he sneaked into Hong Kong again, and 2 days later on 24 April 2019 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 September 2019 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 29 October 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of being harmed or killed upon his return to The Gambia as low due to the low intensity and frequency of past ill-treatment apart from just one single incident at the hotel during which he did not suffer any physical harm, that even though his family and friends had come to know about his sexual orientation but he was never physically ill-treated by anyone in the past, that notwithstanding the hotel incident that he had not been targeted by anyone from the Muslim community for harm due to his sexual orientation, that although relevant Country of Origin Information (“COI”) show that same-sex sexual activity for both men and women is illegal in The Gambia and carries lengthy sentences up to life imprisonment, and that members of LGBTQ are at risk of arbitrary arrest and detention as well as discrimination, such criminalization of same sex conduct was the product of the previous regime under former President Jammeh but has seldom been enforced since his ousting by the newly elected President Barrow in 2016 that reasonable state protection would be available to the Applicant if resorted to upon his return to The Gambia, and that reasonable internal relocation alternatives are also available within the country with a large population of 2 million people spread across a vast territory of more than 11,300 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Banjul or Serekunda where it would be difficult if not impossible for anyone to locate him.

7.  On 8 November 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 October 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 March 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence in relation to the hotel incident between those given to the Director and the Board that it did not consider him to be a truthful or credible witness and rejected his account of what happened at the hotel as not credible, and that although relevant COI show that there is strong societal discrimination against members of the LGBTQ in The Gambia and with aggravated homosexuality punishable by life imprisonment, nevertheless state or police protection would be available to the Applicant upon his return to the country as human rights climate in The Gambia has improved dramatically since the 2016 election when the new President Barrow and his government took steps to reverse former President Jammeh’s legacy of authoritarian and abusive rules that there had not been any prosecutions or convictions of lesbian, gay, bisexual, transgender or intersex persons since ousting of the previous Jammeh regime, and while the law against homosexuality is still in place, the Gambian government has committed to not using it against homosexuality that the Board concluded that the Applicant failed to establish a well-founded fear of persecution that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 17 March 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.  By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 22 June 2023, the Applicant was therefore more than 1 year 8 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 1 year and 8 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that he had been trying to get further documentary evidence from relevant COI as to the latest situation on risk of persecutions against homosexuals like him in The Gambia but that it was impossible for him to do so while under the detention of the Immigration Department that he had had to rely on his friends outside to help him, which explained the substantial delay caused to his present application.

13.  The record shows that the decision was sent on the same day of 22 March 2023 to the Applicant’s then reported address without being returned through undelivered post, and while it is accepted that he has since been under the detention of the Immigration Department, I am not satisfied that the Applicant’s circumstances of being so detained and without legal representation can justify his such serious delay with the filing of his application.

14.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are mostly just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians at all prior to his departure of The Gambia on the factual basis of even his own case. As such I am unable to see how most of them would be reasonably arguable for his intended challenge of the Board’s decision.

15.  Nevertheless, given that the Board did not appear to have taken any issue with the Applicant’s claim of being a gay man or that his sexual orientation would identify him as a member of the LGBTQ social groups, and for which he may on refoulement face risks of serious persecutions and repercussions given the predominantly Muslim population in his home country where consensual same-sex sexual activity for both men and women is illegal and punishable by lengthy sentences of up to life imprisonment, high standards of fairness require that the Board’s reasons for its decision be scrutinized by the Court for any error of law or irrationality or procedural unfairness in the appeal process or in its decision.

16.  As noted above that the Board rejected the Applicant’s account of events at the hotel as not credible due to what it described as contradictions, inconsistencies, omissions and discrepancies in the various versions of events between those given to the Director and the Board (see [31] – [52] of the Decision), and with the benefit of having heard the Applicant in his oral evidence and answers given to questions raised by the Adjudicator during his appeal hearing, in which the assessment of evidence is primarily within the province of the Adjudicator as the primary decision-maker, I am unable to find any error of law or procedural unfairness or irrationality in the Board’s decision to reject the Applicant’s credibility as to his alleged hotel incident.

17.  However, as it appears that the Board did not take any issue with the Applicant’s claim as a gay man, or for that matter neither did the Director, and for which I believe why the Board proceeded to consider and assess the risk which the Applicant may face upon his return to The Gambia as a member of the LGBTQ social group by referring to those COI listed in the appendix to the Director’s decision, given the fact that same-sex sexual activity is a criminal offence punishable by lengthy imprisonments in The Gambia, of which the Board specifically referred to the following COI in its decision:

  “53. The Executive Summary of the Country Reports on Human Rights Practices for 2018 of Gambia issued by the United States Department of State (“USSD 2018 Report”)(Item 1 of the Decision Appendix) reports that there is strong societal discrimination against lesbian, gay, bisexual, transgender and intersex individuals. Aggravated homosexuality is punishable by life imprisonment. Aggravated homosexuality includes serial offenders, relations with persons under 18 or otherwise vulnerable and a person with HIV having same sex relations.

  54. The Country Information and Guidance Report: Sexual Orientation and Gender Identity in Gambia published by the United Kingdom Home Office in August 2019 (“2019 UKHO Report”) (Item 2 of the Decision Appendix), states that consensual same-sex activity for both men and women is illegal and carries a sentence of between 5 and 14 years in prison.

  55. In the Interview, the Appellant said that the authorities in Gambia would not protect him because of his sexual orientation because Gambia is a Muslim country. The COI referred to in the Decision describes a general condition in Gambia that police effectiveness is hindered by deep-rootedness corruption and impunity.

  56. There is however, objective COI that reforms have been on-going in Gambia and that the government has taken practical steps to improve the effectiveness and conduct of the Gambian police.

  57. According to the World Report 2018 of Gambia published by Human Rights Watch (Item 3 of the Decision Appendix), the human rights climate in Gambia has improved dramatically since the 2016 election when the new president, Adama Barrow, and his government took steps to reverse former President Yahya Jammeh’s legacy of authoritarian and abusive rule. The new government promised to make Gambia the “human rights capital of Africa”. The Government released scores of political prisoners, began to strengthen the Judiciary and reform the security services. It also reversed Jammeh’s planned withdrawal from the International Criminal Court.

  58. Section 1(d) of the USSD Report stated that unlike in prior years, security forces did not arbitrarily arrest citizens and that the government generally respected citizens’ rights. It further stated that the government has effective mechanisms to investigate and punish abuse.

  59. Section 1(e) of the Report, stated that the constitution provides for an independent judiciary and that the government generally respected judicial independence and impartiality. The law provides for a right to fair and public trial.

  60. According to paragraphs 2.4.5 and 2.4.6 of the UKHO report, as regards the criminalization of homosexual activities, President Barrow dismissed homosexuality as a non-issue in the country and that the government would not prosecute LGBTI persons. The Report also stated that “since president Jammeh was ousted from power in December 2016, there have been no reported prosecutions or arrests of LGBTI persons in the sources consulted.”

  61. On 5 July 2018, the country’s delegation to the UN Human Rights Council, stated that the “government has no immediate plans to reverse or change the law. The law, however, was not enforced.”

  62. The UKHO Report stated at paragraph 5, that the Human Rights Committee (UN Human Rights – OHCHR), in July 2018, conducted a public review of the implementation of the International Covenant on Civil and Political Rights in the Gambia. The Gambian delegation stated the country was in a period of transition following a prolonged period of autocratic rule. Following these comments and following an examination by the Committee, the same report stated that “there had not been any prosecutions or convictions of lesbian, gay, bisexual, transgender or intersex persons ….. the law against homosexuality was still in place, but the Government had committed to not using it.” The Gambian delegation at the public review stated that the “People had to have a say in the repeal of its law ---- there were religious and cultural aspects in the Gambia that made the decriminalization of homosexuality a difficult issue.”

18.  It was on the basis of these COI that the Board proceeded to find that the Applicant failed to establish a well-founded fear that he will be subjected to persecution if refouled to The Gambia (see [64](A)(d) – (e) of the Decision).

19.  The proper approach which is to be adopted by the fact-finding tribunals or decision-makers when considering whether a gay person who is claiming asylum under the Convention has a well-founded fear of persecution in the country of his or her nationality based on membership of that particular social group is set out by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, 7 July 2010, of which Lord Hope explained and elaborated at para 35:

  “This brings me to the test that should be adopted by the fact-finding tribunals in this country. As Lord Walker points out in para 98, this involves what is essentially an individual and fact-specific inquiry. Lord Rodger has described the approach in para 82, but I would like to set out in my own words. It is necessary to proceed in stages.

(a) The first state, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.

(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to concealment may be. The question what is reasonably tolerable has no part in this inquiry.

(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.

(d) The next stage, if it is found that the applicant will in fact conceal aspect of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.

(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.”

20.  In the present case, as noted above that the Board did not take issue with the Applicant’s claim as a gay man after disbelieving his account of the hotel incident as not credible, and proceeded to the next stage referred to in HJ (Iran) above to examine what his situation will be on return to The Gambia by referring to those COI in the appendix to the Director’s decision that notwithstanding a strong societal discrimination against lesbian, gay, bisexual, transgender and intersex individuals in The Gambia, and that consensual same-sex activity for both men and women is illegal and carries a sentence of between 5 and 14 years in prison, with aggravated homosexuality punishable by life imprisonment, the Board nevertheless determined that the Applicant had no well-founded fear of persecution apparently on the bases that the human rights climate had improved dramatically since the 2016 election when newly elected President Barrow and his government took steps to reverse the abusive rules and policies of former President Jammeh, and that there had since been no reported prosecutions or arrests of LGBTQ persons.

21.  As pointed out by Lord Hope in [35](b) of the judgment in HJ (Iran) supra, the inquiry at that stage which the Board was directed to is what will happen in the future to the Applicant when he appeared before the Board on 21 October 2022, which was some 3 years after the Director’s decision and more than 4 years since the reported situations in The Gambia by those COI relied on by the Board which all dated back to 2018 or 2019, it is my view that the Board should have but failed to proceed to inquire from more relevant and updated COI as to the latest situations in relation to societal discrimination against members of the LGBTQ group as well as any report on any arrests and/or prosecutions of those members in The Gambia since 2018 or 2019, as it is for the Board to comply with high standards of fairness when considering the Applicant’s claim by undertaking a proper understanding of the country conditions at its latest situation, as observed by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at 206 para 55.

22.  In my view it should have been obvious to the Board at the time of the Applicant’s appeal in October 2022 or of its decision in March 2023 that notwithstanding all the apparent improvements in human rights situation in The Gambia since the 2016 election that situation may have changed due to another election or any further change of the government or its policies by the year of 2022 or 2023, and given the fact as noted above that the Barrow government had accepted that decriminalization of homosexuality would be difficult due to the religious and cultural aspects in The Gambia which is predominantly Muslim as pointed out by the Applicant during his appeal hearing to the Board (see [55] of the Board’s Decision), it seems to me reasonably arguable that the Board had failed to make proper or sufficient inquiry into relevant or latest COI in its consideration as to whether the Applicant had any well-founded fear of persecution if refouled to The Gambia.

23.  Furthermore, it also seems clear to me that in its assessment and determination of the Applicant’s claim, the Board failed to follow through with its inquiry into the next stages as noted in HJ (Iran) supra as to whether the Applicant will conceal aspect of his sexual orientation if returned, and if so why he will do so before arriving at its conclusion that the Applicant did not have a well-founded fear that he will be persecuted upon his return to The Gambia.

24.  For these reasons I am of the view that the Applicant’s intended application to apply for judicial review of the Board’s decision is reasonably arguable on the grounds as stated above, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Chan (2007) 10 HKCFAR 676.

25.  Accordingly, I am satisfied that there are merits in the Applicant’s intended application and therefore extended time thereto, and grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds that the Board (1) erred in law in its assessment and determination of the Applicant’s claim that he did not have a well-founded fear of persecution due to his sexual orientation if refouled to The Gambia; and/or (2) failed to apply the relevant test and/or to conduct the necessary inquiries in its determination whether the Applicant has a well-founded fear of being persecuted due to his sexual orientation in The Gambia.

26.  he Gambia, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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