JOOF SAIHOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 509/2023

[2023] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 509 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 June 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of The Gambia in West Africa who arrived in Hong Kong on 11 December 2014 as a visitor with permission to remain as such up to 21 December 2014 when he did not depart and instead overstayed, and surrendered to the Immigration Department on 2 January 2015 when he raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the local supporters of the then ruling political party Alliance for Patriotic Reorientation and Construction (“APRC”) as he supported their rival United Democratic Party (“UPC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Banjul, the Gambia, and later moved to Serekunda where after leaving school he worked as a machine operator, and supported UPC regularly attended their local meetings and activities.

3.  One day in June 2010 while he together with his fellow UPC supporters were participating in an election campaign in his home district, they were attacked by a group of APRC supporters during which one of the APRC supporters was seriously stabbed by some UPC supporter with a knife and later died in the hospital.

4.  Afterwards when the Applicant heard that the APRC supporters were looking to kill UPC supporters in revenge, he fled from his home to hide in his aunt’s place before departing the country for neighbouring Senegal to take shelter in his grandfather’s house.

5.  On 20 July 2014 he then travelled from Senegal to Indonesia, and from there he later travelled to Hong Kong on 11 December 2014 where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 8 October 2015 for drug trafficking for which he was subsequently convicted and sentenced to prison for 10 years and 8 months.

7.  By a Notice of Decision dated 27 February 2018 the Director of Immigration (“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”).

8.  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 his perceived fear is real and foreseeable upon his return to The Gambia due to the absence of or low intensity and frequency of past ill-treatment from the APRC supporters, that there was no evidence or reason for them to specifically target the Applicant given that he held no official post in the UPC, that in any event according to reliable and objective Country of Origin Information (“COI”) that APRC have since their President Jammeh lost the 2016 election and had gone into exile that they are no longer the ruling party and that with the election of President Barrow of UPC who has brought various human rights reforms to the country that state protection would be available to the Applicant if needed upon his return to his home country, and that reasonable internal relocation alternatives are also available in The Gambia with a large population of 2 million people spread across a vast territory of more than 11,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

9.  On 14 March 2018, the Applicant lodged an appeal from prison to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 24 October 2018 and 3 June 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 June 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of being a UPC supporter and together with his fellow UPC members had been involved in some violent conflicts with local APRC supporters but found no evidence of him being specifically targeted by APRC supporters or for them to have any adverse interest in him, and that in any event given the significant political changes in The Gambia since his departure as detailed in the Director’s decision as well as in the relevant COI available to the Board that there is no longer any threat to the Applicant from APRC or any other political opponents as readily conceded by him at his hearing before the Board or of any possible risk from the family of the victim of that stabbing incident in the absence of any evidence of such risk to him prior to his departure of the country that the Board concluded that the Applicant will not face any real risk of the Proscribed harm from the APRC people or the family of the victim if refouled to The Gambia that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 30 March 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board erred in law in failing to consider the Applicant’s case under persecution risk or that the Applicant will be at real risk of persecution if refouled to The Gambia;

(2)  That the Board failed to apply high standards of fairness in its determination of the Applicant’s claim in failing to take into account that his fundamental human right is at stake before reaching its decision as the fact that APRC has lost power at the presidential election will be a motivating force for the victim’s family to seek revenge against the Applicant;

(3)  That the Board’s decision is prejudicial against the Applicant in failing to provide any concrete reasons for its conclusion that the Applicant would not be at any of the proscribed risk as the COI relied on by the Board did not tell the truth facts of the situation in The Gambia;

(4)  That the Board erred in its decision that the Applicant will not be at risk of persecution without considering that his fear hinges on the events surrounding his membership of the political party UPC;

(5)  That the Board’s decision is irrational in finding that the Applicant failed to establish a well-founded fear of the proscribed risks which is contrary to the evidence given by the Applicant in his appeal hearings before the Board and without taking into account of corruption amongst the police and court officials in The Gambia that the Applicant’s safety cannot be guaranteed if refouled to his home country.

12.  By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the 3 month-period for him to file his Form 86 fell on 16 September 2021, the Applicant was therefore more than 18 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 18 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he never received the Board’s decision in the mail as he was then serving his prison term for drug trafficking at Tong Fuk Correctional Institution, and that it was only later upon his discharge from prison and was transferred to the Immigration Department at Tai Tam Gap Correctional Institution that he was only informed of the decision, but by then he was already seriously out of time with his intended application.

15.  The record shows that the Board’s decision was in fact sent on the same day of 16 June 2021 to the Applicant then at Tong Fuk Correctional Institution without being returned through undelivered post, and that with assistance from the welfare officers therein that the Applicant should and would have no reason not to be able to file his application well within the required period, instead of more than 18 months later until 30 March 2023. In the circumstances I am not satisfied that the Applicant has provided a good or valid reason for his such serious delay.

16.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case, or how the Board or the Adjudicator had erred in the decision, or how did the Board fail to apply high standards of fairness or was prejudicial against the Applicant, or in what way did the Board fail to take into account of relevant COI regarding the political situations in The Gambia since the Applicant’s departure of the country of which he did readily accept and concede in his evidence before the Board of no further political risk from any political opponents in his home country. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

17.  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.

18.  In the Applicant’s case, the Board rejected his claim essentially on its findings for the thorough and detailed analysis and reasoning set out in paragraphs 27 - 46 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI regarding the significant political changes in The Gambia since the Applicant left the country, and in the absence of any error of law or procedural unfairness in his 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 or any merits in his intended application.

19.  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.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss 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