SANYANG BAKARY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1451/2019

[2024] HKCFI 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1451 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a Gambian.  He last entered Hong Kong as a visitor on 1 May 2014 and overstayed since 14 May 2014.  On 9 June 2014, he surrendered to the Immigration Department and made a non-refoulement claim.  The claim was made on the basis that, if refouled, he would be caught or even killed by the confederates of the Gambian ex-President (“the ex-President”) for revenge because his elder brother participated in a protest against the ex-President.

5.  According to the applicant, in around 2012, when the ex-President was visiting New York, his elder brother participated in a protest outside the hotel where the ex-President was staying.  Upon the ex-President’s return to Gambia, he made speeches on the Gambian television channels that although he could not detain people who had protested in New York, he would capture their families for revenge.  Since the beginning of 2013, four National Intelligence Agency (“NIA”) officers had gone to the applicant’s home three times looking for him when he was not at home.  The applicant suspected that he was wanted because of his elder brother’s protest in New York and that he had also dealt with his finance in Gambia before.  As for his family members, his younger sister was detained for questioning for three days without torture; his younger brother who used to work in farms for the Agricultural Department of the Gambian government was fired.  Meanwhile, no action was taken against the applicant’s parents and his elder sister because the applicant believed that the former were too old while the latter was a handicap.

6.  As the applicant was worried about his safety, he left Gambia for Senegal in early 2013.  During his stay in Senegal, NIA officers continued to enquire his whereabouts at his home in Gambia.  After staying in Senegal for around nine months, the applicant felt unsafe because there were news report of Gambians found missing in Senegal and that Senegal was just six hours’ drive from Gambia.  He therefore left for China on 16 October 2013.  In January 2014, he took a train from Guangzhou to Hong Kong.  In around April 2014, he arrived in Thailand, intending to return to Gambia from there.  However, he was informed by his younger sister that NIA officers were still seeking his whereabouts.  The applicant also met a few Senegalese in Thailand who told him that he could seek asylum in Hong Kong.  He therefore travelled back to Hong Kong on 1 May 2014.

7.  The applicant maintained contact with his father by phone twice a month. He was told that although the ex-President had been overthrown, Gambia was still politically unstable as it was ruled by a coalition.  His family were therefore planning to relocate to Senegal soon.

8.  The applicant did not seek assistance from the police because he believed that they sided with the ruling government.  He also considered internal relocation within Gambia not viable because it is a small country so that NIA officers would know his whereabouts eventually.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 November 2017 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the absence of past ill-treatment from the confederates of the ex-President together with the fact that the ex-President had been overthrown indicated that the applicant’s perceived risk of harm would unlikely materialise [11]-[13]; (ii) state protection will be available to him upon his return [14]; (iii) internal relocation is viable [15] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [16]-[21], Persecution risk [22]-[27] or Torture risk [28]-[30].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  On 28 February 2019, the Board conducted an oral hearing.

13.  The Board was of the view that the treatment by NIA officers towards the applicant and his family did not attain a minimum level of severity.  In any event, the ex-President was now exiled and that according to the Country of Origin Information (“COI”), NIA was also disbanded.  The applicant’s feared harm is therefore unlikely to materialise [42]-[52], [65]-[69].

14.  Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirement under BOR 2 and BOR 3 risk [6]-[11], [70]-[73], Torture risk [12]-[16], [74]-[75] or Persecution risk [17]-[26], [76]-[78].  Furthermore, state protection is also available to him taking into account the COI [79]-[85].

15.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 on 28 May 2019 to apply for leave for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant has raised no specific ground.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  For the reasons given above, the Board finds that the applicant will not be subjected to any of the applicable risks if he returns to Gambia.

22.  The applicant has raised no valid reason to challenge the Board’s Decision.  There is no reason for this Court to interfere with the Board’s Decision.

23.  The applicant therefore fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision.

CONCLUSION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  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