LAYE LAHAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1480/2019

[2023] HKCFI 2456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1480 OF 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of The Gambia who last arrived in Hong Kong on 9 March 2014 as a visitor with permission to remain as such up to 30 March 2014 when he did not depart and instead overstayed, and some 8 months later on 9 December 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to The Gambia he would be harmed or killed by his younger brother over their monetary dispute in their home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kaur, The Gambia in West Africa before moving with his parents to Senegal where he continued with his education. In 2008 he returned to The Gambia with his grandmother and his siblings, and started his mobile accessories business in Serrekunda, New Yubndump assisted by his younger brother Mamoun without pay.

3.  In late 2012 Mamoun started to demand for a monetary compensation and a share in the Applicant’s business as a partner for all his assistances given to his business in the past, and when they were unable to reach agreement, Mamoun lost his temper and struck the Applicant with a wooden rod and injured his head seriously that the Applicant was taken to the hospital for medical treatments.

4.  After his discharge from the hospital, the Applicant refused to allow Mamoun to continue to work in his business, to which Mamoun accused the Applicant of having cheated him all these years and threatened to kill him and to take the business away from him.

5.  After Mamoun left, the Applicant reported the threats to the police who however regarded their dispute as a private matter to be resolved between themselves and failed to take any action, and as the threats from Mamoun persisted, the Applicant became concerned for his safety, and in September 2012 he closed down his business and departed for Senegal to stay in a friend’s place.

6.  In November 2013 the Applicant went to Guangzhou to look for business opportunities, and from there he also travelled to Macau and Hong Kong, and on his last trip to Hong Kong on 9 March 2014, he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 August 2018 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 15 October 2018 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”).

8.  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 harm from his younger brother Mamoun upon his return to The Gambia as low due to the low intensity and frequency of past ill-treatment from him, that there was no reliable evidence of any real intention of his brother to seriously harm or kill him or that after all these years since the Applicant left the country that his brother would still have any adverse interest in him, that in any event it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Basse where it would be difficult if not impossible for his brother to locate him.

9.  On 26 October 2018 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 27 February 2019 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board. On 26 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim of monetary dispute with his younger brother but found no evidence of any real intention of his younger brother to carry out his threats to kill the Applicant or that his brother would still have any adverse interest in the Applicant after all these years since he left the country in 2012 and without any further contact between them, that it was a private monetary between the 2 brothers without any official involvement that state or police protection would be available to the Applicant upon him return to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached the entire hearing bundle for his appeal before the Board but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has also been established by the Director in his decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave 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