RE CHARTY LAMIN

HCAL 2812/2018

[2021] HKCFI 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2812 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 30 November 2018 (the “2018 Decision”).

2.  The Applicant is a Gambian national.  He entered Hong Kong on 20 June 2014 and was permitted to remain in Hong Kong as a visitor until 18 September 2014. Since 19 September 2014, he remained as an over-stayer.  On 29 September 2014, he surrendered to the Immigration Department and lodged a non-refoulement protection claim by way of a written signification dated 23 October 2014.  His claim is based upon his fear that he will be harmed or killed by his half-brother, Bubacarr and step-mother, Nandin’s family, if refouled because of their land dispute.

3.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].

4.  By a Notice of Decision dated 23 December 2015 (the “2015 Notice”), the Director of Immigration (the “Director”) rejected his claims.  On 22 July 2016, the Applicant applied for late filing of his notice of appeal/petition to the Board against the decision of the Director.  The application was 6 months and 11 days out of time.  On 6 February 2017, the Board refused his application for late filing pursuant to section 37ZT of the Immigration Ordinance on the ground that there were no special circumstances which would make it unjust not to allow the late filing of notice of appeal/petition (the “2017 Decision”).  The Applicant did not further pursue his application by judicial review.  The 2017 Decision was therefore final, so was the decision of the Director in the 2015 Notice refusing his application for non-refoulement protection under the three applicable grounds.

5.  In the meantime, a further ground for protection became available under the USM, ie BOR 2 Risk[4] ground, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims within 14 days of that letter, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBORO”), in particular BOR 2, in case he had omitted any relevant facts before because of any misunderstanding on what “all applicable grounds” meant.

6.  By his letter dated 30 March 2017, the Applicant replied stating that he feared he would be killed by his half-brother, Bubacarr and his step-mother, Nandin upon his return to The Gambia.  As his claims for non-refoulement on that basis had thoroughly been assessed and determined in the 2015 Notice on 23 December 2015, the immigration officer considered the Applicant had no additional materials or fact to provide on any other absolute and non-derogable rights under HKBORO, including BOR 2 risk ground. 

7.  Then, by a Notice of Further Decision dated 20 April 2017 (the “2017 Notice”), the Director made a determination that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO, including the right to life under BOR 2 being violated upon his return to The Gambia.

8.  On 27 April 2017, the Applicant petitioned against the 2017 Notice.  On 30 November 2018, the Board dismissed his petition.  Then on 10 December 2018, he applied for leave to apply for judicial review of the 2018 Decision of the Board.

The Applicant’s case

9.  The Applicant’s father (the “Father”) had two wives, Nandin and the Applicant’s mother.  Nandin’s son, Bubacarr, was the eldest child of the Father.  The Father died intestate leaving five pieces of land.    One day, Bubacarr sold one piece.  A dispute broke out when the Applicant confronted Bubacarr about the sale.  Similarly, the Applicant sold another piece. Bubacarr confronted the Applicant with a knife and demanded the sale be cancelled.  As the Applicant was running away, Bubacarr threatened to kill him whenever he saw him.  Bubacarr complained to the police about the Applicant’s sale.  The police invited the Applicant and his mother to attend the police station.  At the police station, they saw Bubacarr and Nandin.  The Senior Station Officer informed both parties that there was nothing the police could do but to forward the case to court.  Both parties agreed and left the police station.

10.  About a week after that meeting, another dispute broke out between the two families.  The Applicant and Bubacarr were not involved.  But the Applicant’s uncle told the Applicant that Bubacarr mentioned that he wanted to kill the Applicant.  Out of fear for his safety, the Applicant fled to Senegal and spent about a month there.  His mother told him to go elsewhere because the situation at home became worse and tension had been built up.  Then the Applicant went to China and then to Hong Kong.  At the time when the 2015 Notice was issued, the court case between the two families was still pending.

The decision of the Director in the 2015 Notice

11.  Based on the low intensity and low frequency of past ill-treatment, the immigration officer considered the Applicant’s future risk of harm upon his return to The Gambia was low and that the ill-treatment he received did not attain a minimum level of severity.  Based on the available country of origin information, the immigration officer considered state protection is available to lower or negate the risk; and internal relocation is a viable option to avoid the risk. 

12.  Essentially for the above reasons, the immigration officer did not consider the Applicant entitled to protection under the BOR 3 Risk ground and Torture Risk ground.  For the same and additional reason that the feared ill-treatment arose out of a personal money dispute which had nothing to do with any of the five reasons under the 1951 Convention Relating to the Status of Refugees (ie race, religion, nationality, membership of a particular social group or political opinion) which is a prerequisite for making the claim, the Applicant is not entitled to protection under the Persecution Risk ground.

13.  Accordingly, by the 2015 Notice, the Director refused the Applicant’s claims for non-refoulement protection.  The Applicant’s application for late filing of notice of appeal against the 2015 Notice was refused by the Board. There was no valid successful appeal or review against the 2015 Notice or the 2017 Decision of the Board.  For the reasons as stated in paragraph 4 above, the Director’s decision in the 2015 Notice and the 2017 Decision of the Board are final.

The decision of the Director in the 2017 Notice

14.  The grounds advanced by the Applicant in his letter dated 30 March 2017 in response to the Director’s invitation for submission relating to BOR 2 claim are the same as those he had advanced before, which had been considered and rejected by the immigration officer in the 2015 Notice on 23 December 2015.  Hence, the immigration officer considered the Applicant had no additional materials or fact to provide in respect of any other absolute and non-derogable rights under HKBORO, including BOR 2 Risk ground. Specifically, in relation to BOR 2 Risk ground, the immigration officer said that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBORO being violated, including the right to life under BOR 2, upon his return to The Gambia. Accordingly, the Director issued the 2017 Notice.

The 2018 Decision of the Board

15.  The Applicant appealed to the Board against the 2017 Notice.  His ground of appeal as stated under Section 2 of the Notice of Appeal is as follows:

“My particular ground based upon that I am fear that I would be harm or killed and how returning will cause threat to my life from Mr Bubacarr and his mother family. If I return to the Gambia because of the land dispute”

Then he set out the facts of his case, which have been quoted in full by the Board in paragraph 10 of its 2018 Decision.  They are essentially the same as summarized in paragraphs 9 and 10 above.  There is nothing new.

16.  The Board made the following finding and conclusion in paragraphs 11 to 14 of its Decision:

“Finding

11. I have carefully gone through the [2015 Notice] dated 23 December 2015. What the [Applicant] stated at Section 2 was just a repetition of his case involving a land dispute with his half-brother and the stepmother. The Immigration Officer had carefully analysed and gone through his case in detail before rejecting his non-refoulement claim.

12. I am satisfied that the Immigration Officer had come to the right decision.

13. In any event his reasons for petition do not engage BOR 2 (ii) to (iv) in relation to death sentence and genocide and he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 (i).

Conclusion

14. There is no substance in his grounds.  His petition is therefore dismissed.”

17.  In effect, the Board accepted and adopted the reasons of the Director in the 2017 Notice.  It further explained why BOR 2 was not engaged.

The Applicant’s grounds for judicial review

18.  In his Notice of application for leave to apply for judicial review, the Applicant did not state any grounds for his application.  In his affirmation in support, he said:

“I am not satisfied with the decision given by appeal Board. I have problem in my own country. Please help me to stay in Hong Kong so that I can save my life.”

In his written submission dated 23 March 2021, the Applicant wrote:

“The issue of my problem is still on going and their (sic) is no places for me to hide in Gambia and Gambia is so much small whereby anywhere I am in that surrounding I can easily be traces. Therefore the fighting and hatred between the two families is more than from the begaing (sic). Having information that my half brother said any days I reach in my country he would kill me and he can even hire someone to look after me. Despite, since the relationship of the two families has being dissolved or separated due to my caused. Therefore I need more protection for not going back to my country. Thanks.”

19.  As can be gleaned from these documents, the Applicant’s grounds for judicial review are that he disagreed with the finding of the Board and that his life will be in danger upon his return to The Gambia.  In essence, he is seeking to challenge the finding of facts by the Board and a reassessment of his claims.  But he advanced no new evidence or information.  All the evidence he had in support of his claims under all the four applicable grounds, including BOR 2 ground, had been presented before the Director when the Director made his decision in the 2015 Notice against which there was no successful appeal to the Board.  The decision in the 2015 Notice is therefore final. It was decided in the 2015 Notice that the Applicant’s future risk of harm upon his return to The Gambia is low; that the ill-treatment he received did not attain a minimum level of severity; and state protection and internal relocation are available to prevent or avoid the risk.  These finding of facts are binding on the Applicant.  Hence in the 2017 Notice, the Director found that the Applicant having adduced no new evidence in support of his BOR 2 claim, his claim failed on these facts for the same reasons; and for the same reason, in the 2018 Decision the Board dismissed the Applicant’s appeal and confirmed the Director’s decision in the 2017 Notice. 

Disposition

20.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

21.  Having rigorously examined the 2018 Decision, the papers and the evidence with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The finding of facts by the Director in its 2015 Notice is now final.  On those findings of facts, they must necessarily follow that the Director’s decision in his 2017 Notice and the 2018 Decision of the Board are correct and the Applicant is unable to prove his claims to protection under any of the four applicable grounds under the USM, including BOR 2 Risk ground.  There was no error of law in the 2018 Decision. Neither was the decision unreasonable or irrational. 

22.  The Director had invited the Applicant’s attention to the new applicable ground under BOR 2 and given him a further opportunity to submit relevant facts.  The Director took into account his submissions before making his decision in the 2017 Notice.  There was no procedural unfairness in the proceedings.  The Director and the Board adhered to a high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable. 

23.  The 2018 Decision is utterly without fault.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, his application for judicial review is refused.