JATTA OMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 554/2018

[2020] HKCFI 2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 554 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 refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of The Gambia who arrived in Hong Kong on 24 July 2014 with permission to remain as a visitor up to 22 October 2014 when he did not depart and instead overstayed, and on 31 October 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the government for political reasons.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bulock, The Gambia.  After leaving school he was employed as a civil servant to teach in a government primary school, and was expected to support the regime of President Jammeh who ruled the country as a dictator with fear, resulting in frequent violations of the human rights of its citizens who were afraid to speak out against the government or criticize the president.

3.  In early 2013 the Applicant was appointed by the government to be a polling officer for which he was required to sign a code of conduct, of which the Applicant felt that his political and civil rights had been severely restricted, and feared that one day he would be arrested for violating the code of conduct, and so he decided to leave the country for his own safety, and on 14 July 2014 he departed for Senegal, and from there he travelled to Hong Kong where he overstayed, and subsequently upon surrendering to the Immigration Department he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 29 May 2017 the Director of Immigration (“the 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Gambian government upon his return to The Gambia due to the absence of any past ill-treatment from them, that his claimed fear of harm at the hands of the Gambian authorities is based solely on speculation and not supported by any evidence in particularly now that President Jammeh had gone into exile after losing the December 2016 election, that reliable and objective Country of Origin Information (“COI”) show that reforms in improving human rights in The Gambia have since taken place under the government of the new president who has promised to end human rights abuses in the country and released all prisoners detained by the former regime that it would be safe for the Applicant as an able-bodied adult with working experience to return to The Gambia to re-establish his life and career without any fear of harm from the government.

6.  On 8 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 19 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found no reliable evidence that the Applicant would be at risk of harm upon his return to The Gambia due to his past employment as a teacher or civil servant or that he had signed the code of conduct as a polling officer, and that in any event since President Jammeh lost the last election and has since gone into exile and with human rights reforms and protection under the new president and his government that the Applicant’s claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

8.  On 4 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of those decisions and documents previously submitted but without putting forward any ground for his intended application.  As such I do not find any reasonably arguable basis for him to challenge either decisions. 

9.  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.

10.  In the Applicant’s case, the Board rejected his claim essentially on its finding based on objective and reliable COI of no real or substantial risk of harm from the Gambian government after the previous president had lost his last election and has since gone into exile and with the human rights reforms and protection under the new government in place, and that in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

11.  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.

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