SANYANG YAHYA v. DIRECTOR OF IMMIGRATION

HCAL 1409/2025

[2025] HKCFI 5198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1409 OF 2025

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

Following:

1.  Leave to apply for Judicial Review be granted;

2.  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

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 1 April 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.   

2.  The Applicant is a 40-year-old national of The Gambia who arrived in Hong Kong on 15 July 2014 as a visitor and with permission to remain as such up to 13 October 2014 when he did not depart and instead overstayed, and on 22 October 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 the Gambian authorities and/or the National Intelligence Agency (“NIA”) due to his father’s past political activities.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 3 April 2017, 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”).

4.  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 the Gambian authorities or the NIA upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any adverse interest of the Gambian authorities in him at all in the past up to the time when he was able to depart the country without any problem, that the situation in The Gambia had since changed significantly after President Jammeh who jailed the Applicant’s father was defeated in the 2016 election and had since left the country in exile and that the newly elected President Barrow has launched significant reforms to the country inn particularly to the NIA and to promote real democracy in the country that it is not accepted that there would still be any adverse interest in the Applicant or that he would face any real risk of harm from the authorities upon his return to The Gambia, that in the absence of any involvement of the current government in any political persecution in the past that state or police 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 spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied and highly educated adult with working experience to move to other part of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decision was also dismissed by the Board on 23 November 2022 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was then refused by this Court on 9 April 2024 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 180/2024 [2024] HKCFI 970).

Request To Make Subsequent Claim

7.  The Applicant never brought any appeal to the Court of Appeal against the Court’s decision, but on 11 February 2025 in writing to the Immigration Department he requested to make a subsequent claim on the basis that in addition to his fear still of being harmed or killed by the Gambian authorities due to his father’s past political activities as in his previous claim, he also fears of being arrested, ill-treated and persecuted by the authorities and/or the Muslim community due to his sexual orientation as a gay man as same sex activities are against the law if refouled to The Gambia.     

8.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

    (2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.  Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) and submitted the following information for his intended subsequent claim as well as his explanations for not raising it in his previous claim:

(1)   That he still fears of being harmed or ill-treated by the Gambian authorities and the National Intelligence Agency (“NIA”) due to his father’s past political activities as stated in his previous claim;

(2)   That he is bisexual but as same sex activity is illegal in The Gambia that he had concealed it as a secret from everybody including his family while growing up;

(3)   That in 2001 when he was 16, he started secretly dating his boyfriend Saihou Drammeh, and in 2005 his boyfriend introduced him to a friend whom he trusted and the 3 of them often hanged out together that eventually the relationship between the Applicant and his boyfriend was revealed to the friend;

(4)   That on 17 January 2006 while the Applicant was in his boyfriend’s home, some policemen arrived to arrest both of them and brought them to the local police station where they saw their mutual friend who turned out to be an undercover policeman sent to investigate their same-sex relationship;    

(5)   That during the police interrogation the Applicant was kept in solidary confinement in a small room without any bed, and that almost everyday he would be beaten and tortured by the officers, and sometimes even being hit with hammers and iron pipes as well as burning plastics, but was denied any medical treatments or any access to lawyers or visitors, and was only released 3 weeks later on bail posted with the help of his boyfriend’s family;

(6)   That around 2 weeks after he was bailed out, his father was arrested by the NIA officers that the Applicant was advised by his family to leave the country to avoid being arrested as well, and so in 2014 he departed the country for Senegal, and then in 2014 he went to China before eventually arriving in Hong Kong to raise his claim, while his boyfriend also absconded on bail and left the country for Sierra Leone where the Applicant subsequently lost contact with him;

(7)   That the Applicant does not think he will get any state protection if refouled to The Gambia as he will be immediately arrested and prosecuted by the authorities due to his sexual orientation which is contrary to the law, nor will he be given any fair trial in a country with a dominating Muslims population, and that internal relocation would not be a possible alternative for the same reason;

(8)   That in his previous claim he never mentioned anything about his sexual orientation or raised it as part of his non-refoulement claim as he did not then know anything about the law in Hong Kong or that homosexuality is not against the law, and that he was in fear of being arrested and immediately sent back to The Gambia if he were to disclose his sexuality in his previous claim, and that it was only until very recently that he realized that he could rely on such basis for non-refoulement protection that he therefore made his present request to raise his such subsequent claim.         

10.  The Director or his immigration officer did not conduct any oral hearing for the Applicant’s request, and by a Notice of Decision dated 1 April 2025 refused to allow him to make a subsequent claim upon finding that the basis thereof as regard his father’s past political activities was the same as that of his previous claim, that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success, while his assertions of being bisexual and his fear of being persecuted by the Gambian authorities and/or the Muslim community if refouled to his home country were not credible given that he never raised them in his previous claim when he was then legally represented by DLS that it is not accepted that his intended subsequent claim is genuine and that his such assertions were just fabrications to advance his case.

11.  On 19 June 2025, the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in his subsequent written submissions handed up to the Court at the hearing of his leave application he put forward the following grounds for his intended challenge:

(1)   That the Director and the immigration officer erred in law in failing to consider the Applicant’s case under persecution risk in refusing his request to make a subsequent claim;

(2)   That the Director failed to apply high standards of fairness in his determination of the Applicant’s claim by failing to take account of his fundamental human rights are at stake before reaching the decision;

(3)   That the Director acted in a procedurally unfair manner in dealing with the Applicant’s application without properly assessing his credibility;

(4)   That the Director was wrong as a matter of law for not having applied the principle of irrationality;

(5)   That the Director and the Board were prejudicial against the Applicant in dismissing his appeal by maintaining that he did not face any real risk under any of the applicable grounds;

(6)   That the decisions of the Director and the Board were irrational in dismissing his claim and appeal in failing to establish any well founded fear of any of the applicable grounds contrary to the evidence given by the Applicant during the interview.  

12.  Some of these complaints of the Applicant are however just bare and vague assertions without the necessary details or particulars or elaboration as to how they apply to his case, such as Grounds (2), (4) and (5), whilst (6) refers to the screening and determination of a non-refoulement claim under the USM and is not entirely relevant to the Applicant’s request to make a subsequent claim.

13.  Grounds (1) and (3) are however in my view relevant in that they refer to the application of high standards of fairness in the consideration of his such request as well as the proper assessment of the credibility of his intended subsequent claim, albeit again without the necessary elaboration as to exactly in what way did the Director fail to apply them in the consideration of the Applicant’s request. Nevertheless, given the seriousness of the issue at hand and the implication of the Director’s decision which denied the Applicant the right to have his subsequent claim to be properly screened under the USM, and while there is no question of the necessity to have a more stringent filtering process to eliminate unmeritorious subsequent claims by claimants after their previous claims have been properly and finally determined and disposed of to prevent abuses by them seeking to avoid or delay their removal by the Immigration Department, as in the present case as regard the Applicant’s claim of fear of harm from the Gambian authorities and NIA arising from his father’s past political activities which the Director rightly refused to allow him to raise it again as a subsequent claim after it had already been finally determined in his previous claim.

14.  However, the factual basis and nature of the Applicant’s claim of fear of harm arising from his sexual orientation is clearly different from that of his previous claim and has henceforth never been screened as to its merits under the USM, hence high standards of fairness would require the Court to scrutinize the Director’s reasons for any error of law or procedural unfairness in his refusal of the Applicant’s request to make such a subsequent claim.

15.  The Director’s reasons are given in paragraph 13 of his decision as follows:

“In the Statement, you now asserted that you are a bisexual and narrated your past experience for being a bisexual living in Gambia as mentioned at the above paragraphs 11 (c) to (k). You stated that you did not mention anything about your sexuality in your previous claim as you did not know about the law in Hong Kong at that time. You did not know if being bisexual was legal in Hong Kong or not. You were in fear that if you disclosed your sexuality in your case, you might be arrested or be sent back to Gambia. Now you know that being bisexual is legal in Hong Kong so you would like to raise this ground as the reason for non-refoulement/ You also stated that you believe you will not be treated fairly and will even be persecuted due to the tribalism in Gambia as you are from the minority Jola tribe while the government consists of Mandinka people. In fact, you were legally represented by the DLS in your previous claim with proper advice in filling out your NCF as well as providing the Q&A, in which you should have set out your claim comprehensively on all your fears upon your return to Gambia. It is therefore considered illogical and inconceivable that you would conceal and omit such important information as you alleged in the Statement regarding your bisexuality and the experience you went through as well as your fear of being ill-treated or even persecuted as you are from the minority Jola tribe for whatever reasons, if ever existed, during the entire process of your previous claim, particularly with the assistance of the DLS. Your present submission that you were in fact a bisexual person and your fear of being arrested and tortured by the Gambian authorities and your fear of being ill-treated or even persecuted as a Jola minority as claimed is therefore considered to be incredible and unreliable. The subsequent inclusion of your current fears, while concealing them earlier, suggests a potential attempt to embellish your story. Such discrepancies and omissions create significant doubts about the reliability and coherence of your claim, casting suspicion on whether the fears you described are genuine or fabricated to advance your case. Besides, apart from your present bare assertion, there is no credible or cogent evidence or information adduced by you in this regard that will constitute a significant change of circumstances.”

16.  It appears from the above that the Director’s disbelief of the Applicant’s claim of being a bisexual rested entirely on the Applicant’s failure to raise it in his previous claim, without making any or proper consideration or analysis of his explanations of then not aware of the law in Hong Kong and his fear of being arrested and sent back to The Gambia right away, and while the Director rightly noted that the Applicant was then legally represented by DLS, but if it was intended to suggest that he could or should have consulted his lawyer about such matters which he was not certain or aware of, and to infer that he was therefore not telling the truth or was lying about his reasons for not raising his sexual orientation in his previous claim and thereby to impeach the credibility of his intended subsequent claim, high standards of fairness would in my view require the Director or his immigration officer to raise such issues with the Applicant and to put these questions to him in a screening interview, or at least to serve him with a list of such questions as part of the proper process for assessing his credibility, so that the Applicant may have the opportunity of replying or explaining or otherwise dealing with such aspects of his case or evidence, which is essential to fair play and fair dealing with non-refoulement claimants: See Re Masud MD, CACV 341/2021 [2021] HKCA 1449 at para 32.              

17.  Furthermore, and equally significant in my view, while the burden of proof lies on the Applicant to establish his subsequent claim, it is for the Director, or for that matter the immigration officer charged with determining his request, to assess the credibility of such claim on all parts of the given evidence and not just on a single or isolated incident or aspect of the claim, of which the principles and methods have been clearly set out in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued in December 2011, with the relevant parts as follows:

“B. ESTABLISHING THE FACTS

  (1)   Principles and methods

196. … while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit.

197. The requirement of evidence should not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198. A person who, because of his experience, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could take his fear “well-founded” …

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an “underserving case”.

(2) Benefit of the doubt

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”     

18.  These guidance of the UNHCR Handbook were adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, and at 206 Li CJ elaborated on the importance of drawing attention to matters in the claim that require clarification or explanation so that they can be addressed by the claimant, and that a proper understanding by the decision-maker of the country conditions is usually relevant to the assessment of the claim:

“Matters to be considered

52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

See General Comment No 1 issued by the Committee Against Torture on the Implementation of art.3 in the Context of art.22 (21 November 1997) (A/53/44, Annex IX, CAT General Comment No 1). This Comment is helpful. It relates to claims made by individuals to the Committee concerning a State Party which has declared under art.22 that it recognizes the Committee’s competence to deal with claims from individuals subject to its jurisdiction. No declaration has been made in respect of Hong Kong. But the Comment may provide a useful reference for the Secretary in assessing claims in accordance with the policy.

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the Refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. For example, in the present case, the respondent’s letter of 5 March 1999 stated that “proof documents” were available but could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”

19.  Similarly for assessing of and making credibility findings on such claims by a decision-maker, the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, dated 31 January 2004, Section 2.1.1 provides that when assessing the credibility of a claimant, all of the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all such evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, while Section 2.1.2 also provides that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.

20.  In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true or credible, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated (see Section 2.1.2).

21.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him or her, as provided by the UK Home Office in its guidance set out in its Asylum Policy Instruction: Assessing Credibility and Refugee Status, version 9.0, 6 January 2015 at section 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refu” would have behaved, or how they think a third party would have acted in the circumstances.”

22.  Whilst it is true that all these principles were obviously established for the assessment and determination of torture or non-refoulement claims, and that the Applicant’s case is one that concerned instead a request to make a subsequent claim after his previous claim had been finally determined, and hence was subjected by the immigration officer to the stringent filtering process as noted above, but in the consideration such a request, high standards of fairness are in my view similarly applicable, and hence it seems to me reasonably arguable that in refusing the Applicant’s request to make a subsequent claim based on his asserted sexual orientation, that the Director and/or the immigration officer (1) erred in law in the assessment of the credibility of his request to make a subsequent claim; and/or (2) failed to adequately assess or at all his intended subsequent claim; and/or (3) failed to adequately assess or at all the relevant COI in relation to the criminality of bisexuality and homosexuality conducts or activities in The Gambia; and/or (4) failed to adequately assess or at all the relevant COI in relation to the risk of persecution against such conducts or activities by the Muslim community in The Gambia.                                         

23.  In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Director’s decision in refusing his request to make a subsequent claim is reasonably arguable on the grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.  Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision on the grounds stated, 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 Director as respondent. 

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