RE CEESAY AHMAD

HCAL 1622/2019

[2021] HKCFI 3758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1622 OF 2019

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D E C I S I O N

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1.  The applicant is a national of Gambia.[1] He came to Hong Kong on 4/11/2016. He overstayed for 3 days until 21/11/2016 when he was arrested by the police. He raised a non-refoulement claim in this case on 13/1/2017 and 15/1/2017.

2.  He feared that he might be harmed or killed by the police if refouled. He was involved in the activities of the UDP during the previous government controlled by the APRC. [2]

3.  In 2012, he was an active member but hold no office with the UDP.  The ruling party was APRC.  There were serious human rights and corruption problems in Gambia then. During the protest at the end of April 2016, he was detained and beaten.  His uncle, who was a police officer, managed to smuggle him out of the prison. He then fled to Dakar, Senegal.  He stayed there for a few months before departing for Hong Kong.  He encountered no problem when departing Gambia. He was safe in Senegal.

4.  In his passport, there were entries recording that he had left Senegal and returned to Gambia on 29/7/2016.  He then left Gambia and returned to Senegal on 2/11/2016.

5.  His non-refoulement claim was rejected by the Director on 27/9/2018. His appeal to the TCAB was rejected on 10/6/2019.

6.  The adjudicator found that the applicant was not credible. There was no basis of serious future risk. The passport entries clearly contradicted his assertion that he never returned to Gambia once he left.  He left Senegal for Gambia on 29/7/2016 and stayed there until 2/11/2016. He could pass through the immigration of Gambia without any problem.  This contradicted his claim that his life was in danger and he was wanted by the authorities in Gambia. The NCF contradicted his claim that he was the only son. The COI reported that opponents of the former regime had been released and appointed to posts of the current government.  The applicant’s assertion that he was targeted by the police was without basis.

7.  On 14/6/2019, the applicant applied for leave for judicial review of the TCAB decision. This court fixed a hearing on 2/2/2021.  The applicant was absent. The notice of hearing was sent to the address according to the record of the Immigration Department as of 30/10/2020.  There was no return of mail. This court consider the leave application on papers.

8.  The adjudicator correctly pointed out the inconsistencies in the evidence. The adjudicator was justified in rejecting the factual bases of his claim. In my view, the adjudicator’s conclusion is reasonable.  There is no error of law and procedure.  The intended judicial review is not reasonably arguable. This court refused leave on 20/5/2021.

9.  The applicant filed a summons on 9/6/2021 for extension of time to appeal against the decision of this court.  He was about one week out of time. In the summons, he alleged that he did not receive the decision of this court.

10.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[3]

11.  The applicant is out of time for about one week. The decision was sent to his last known address in the court file at Nathan Road. It transpired that he had moved to a new address at To Kwa Wan as shown in the summons dated 9/6/2021. He had not updated this change of address with this court. He must bear the consequence of this failure.

12.  At this stage, the merits of the intended judicial review is also an important issue [4].

13.  The adjudicator was justified in rejecting his evidence for the reasons set out in paragraph 6 above. The applicant was not credible.  In my view, the intended judicial review was of no merit.

14.  In the circumstances, I refuse the application for extension of time to appeal.