CHOI MATARR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2277/2018

[2022] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2277 of 2018

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 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

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

The applicant

4.  The applicant is a national of Gambia.  He last entered Hong Kong on 25 January 2013 as a visitor and was permitted to stay until 25 April 2013. However, he did not depart and had overstayed since 26 April 2013.  On 7 May 2013, he surrendered to the Immigration Department for overstaying.  On 13 August 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Gambian government or its agent, the Junglers.

5.  According to the applicant, his uncle Alpha Bah was a member of a coup which attempted to, but unsuccessfully, overthrow the government.  After its failure, Alpha was arrested for treason and sentenced to death in December 2006.  In August 2006, during the applicant’s visit, Alpha told him that the authorities were the torturers.  Subsequently, the applicant was approached by a journalist who wrote the story about Alpha.  On 25 May 2009, the applicant was kidnapped by the Junglers for his alleged leak of information to the reporter.  He was beaten up.  After his release, he was threatened not to tell anybody about the incident.  Later on 1 June 2009, the applicant was kidnapped and beaten again by the Junglers.  He then fled to Senegal.  Nevertheless, in February 2012, he learnt that his mother was beaten by the Junglers.  Thus, he returned to Gambia.  He was again taken by the Junglers four times from February 2012 to August 2012.  Out of fear, he fled to Senegal again and eventually to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 February 2016 by the Director (the “Director’s First Decision”) and paragraphs 23 to 32 of the Board’s Decision. 

The Director’s Decisions

6.  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”).

7.  By way of the Director’s First Decision, the Director dismissed his claim on BOR 3 risk, Torture risk and Persecution risk on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the facts indicated that the Gambian government did not target the applicant adversely [12]; (ii) his decision to return to Gambia was inconsistent with someone who genuinely feared a risk of harm [13]; (iii) his credibility was in doubt [14]; (iv) reasonable state protection was available to the applicant [15]-[16]. 

8.  On 21 June 2017, by way of a Notice of Further Decision, the Director also dismissed the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”). 

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”. 

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  On 22 August 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [4].

11.  The Board first considered the country of origin information (“COI”) on the Junglers [33]-[34].  It then weighed the applicant’s evidence against the objective facts and concluded that the applicant was not a witness of truth [37].  Meanwhile, the Board noted that there was a change of government in Gambia which might totally change the political environment [38]. 

12.  Even on the applicant’s own evidence, the Board found that (i) the applicant’s assertion to be Alpha’s relative was unsupported by any evidence. He also failed to provide any details of Alpha [39]-[41]; (ii) his evidence on the alleged abductions by the Junglers was inherently inconsistent [42]-[44]; (iii) the COI showed that there was a change of government and that the risk of harm from the Junglers was far-fetched [45]-[49].

13.  For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.  The applicant has filed Form 86 dated 19 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant argued with the Board’s finding of the facts. He said that the inconsistencies as raised by the Board were because of the lapse of time and he could not remember the facts well. He said that he had close relationship with is uncle and the family. As to the change of government, he argued that such change does not mean the country will be a safer place to live.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

18.  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.”

19.  Those grounds in paragraph 15 above are not valid reasons to challenge the Board’s Decision. The Board is the fact finding authority of the case. The Board had taken into account the fact that the accuracy of the facts as related by the applicant was affected by the lapse of time and that he was frightened. See paragraph 36 of the Board’s Decision. The Board is entitled to come to its decision as to the facts of the case. There is no evidence from the applicant to challenge its finding of the facts.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for 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