CAMARA LASANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2531/2019

[2025] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2531 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Camara Lasana (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 September 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Gambian born on 12 May 1975 in Diabugu, The Gambia.  He received education up to Grade 5.

3.  The Applicant claimed that he joined the United Democratic Party (“UDP”) in around 2006.  In 2002, the Applicant worked for a German national (“CR”) who traded in scrap metal.

4.  In September 2012, the Gambian government stopped CR’s company from shipping scrap out of The Gambia.  CR was arrested in around mid-October 2012.  The National Intelligence Agency (“NIA”) (now known as State Intelligence Services (“SIS”)) approached the Applicant two weeks later requiring them to pay the Gambian government 100,000 euros in order to give them the go ahead to ship the scrap to France and to get CR released.

5.  CR paid 100,000 euros and got released.  CR sold the scrap to an Indian businessman in The Gambia and returned to Germany.

6.  CR shut down his business after he returned to Germany.  CR arranged to ship his machine (“Machine”) out of The Gambia to Senegel.  CR agreed with the paramilitary that CR would paid 100,000 dalasi to the Gambian government for him to move the Machine to Senegal by truck.  The Applicant was responsible for moving the Machine and the paramilitary would gave him the clearance paper.

7.  The Applicant and his assistant moved the Machine by truck out of The Gambia.  He left the Machine in Velingara which was the nearest town to Basse, Senegal and contacted CR to pick it up in late November or December 2013.  The Applicant then returned to The Gambia.

8.  In December 2013, the Applicant was arrested by police and the NIA officers.  The Applicant was detained in the NIA headquarters for about a week and in the police headquarters for another week before he was brought to trial.  During his detention, he was interrogated on the whereabouts of the Machine and attacked repeatedly by the officers.  They asked the Applicant to explain the movement of the Machine and accused him of being an enemy of the Gambian government because he joined the UDP.

9.  The Applicant was charged with “improper removal of machines out of the country without permission”.  The Applicant was not given any legal representation.  The court granted him bail.  He had to report to the court from time to time and at the court hearings, he was asked to provide the whereabouts of the Machine.  A judge also warned the Applicant that he would receive a lengthy sentence if he failed to disclose the whereabouts of the Machine.

10.  The Applicant fled to Hong Kong on 2 July 2014.  About a week later, a group of soldiers went to his home to look for him.  His brother also told him that a friend in the Gambian police told his brother that the NIA was still looking for him.

11.  The Applicant claimed that the relevant events happened when President Jammeh was in power. However, he could not return to The Gambia even after President Jammeh has left office because he had a land dispute with the current president, President Barrow (“PB”).  He had sued PB in around 2008.  They went to court several times between 2010 and 2013 on dispute over ownership of land.  The dispute was still on-going.  After the Applicant left The Gambia, PB had sent people to his house to try to find him.

12.  The Applicant claimed that he were in fear of being arrested and harmed by the Gambian police or the NIA if he were to be returned to The Gambia because of his land dispute with PB and the continued violence and unstable political situation in The Gambia.

13.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

14.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

15.  On 30 August 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86 the Applicant named the USM as the proposed respondent and the Board as the interested parties.  He exhibited the Board’s Decision to the Supporting Affirmation.  It was thus clear that he intended to seek judicial review of the Board’s Decision in this application.  This was confirmed with the Applicant at the court hearing of 8 April 2025 (“Court Hearing”)

Legal principles applicable to judicial review

16.  In a judicial review, the court does not step into the shoes of the decision makers.

17.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

18.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

19.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

20.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision and no other supporting documents.  He also did not put forward any ground for his intended judicial review in the Supporting Affirmation.

21.  The Applicant attended the Court Hearing and maintained that he was still in danger if refouled to his home country but he was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.  He said that he had married in Hong Kong.  His wife is a foreign domestic helper holding an employment visa in Hong Kong.  They have a son of 1 year’s old and he wanted to stay in Hong Kong to take care of his son.

22.  The Board found the Applicant’s testimony to be inconsistent with his evidence before the Director and incredible. 

23.  For reasons set out in §§80-84 of the Board’s Decision, the Board did not accept that the Applicant had any land dispute with PB.  The Board was not satisfied that the Applicant personally knew PB or that he had any business dealings with PB.  The Board was of the view that even if the Applicant did engage in business with PB in the past, the Applicant’s claims regarding the dispute with PB over land was still not credible.  The Board did not accept that the Applicant faced harm from PB and/or the Gambian government as a result of the alleged land dispute.

24.  For reasons stated in §§87-92 of the Board’s Decision, the Board did not accept that the Applicant worked for CR as he claimed nor that he was arrested and detained by the NIA or the police in relation to the Machine or that he was arrested, detained and charged with any offence as result of the alleged removal of the Machine to Senegal for CR.  The Board did not accept that the Applicant fled The Gambia whilst he was on bail.

25.  The Board had taken into consideration the Applicant’s claims regarding the continued political instability in The Gambia and other independent information which strongly suggested that the situation had changed substantially since the Applicant departed The Gambia.  The democratic transfer of power had resulted in significant positive changes in the human rights climate.  The Board did not accept on the information before it that there had continued to be the violence associated with the previous regime or that the political situation in The Gambia was unstable such that this would result in the Applicant facing a real chance or real risk of arbitrary or unlawful killing, disappearance or any other abuse of his human rights.  Nor did the Board accept that the Applicant faced a real chance or real risk of serious harm because of his past support of UDP, winner of the most seats in the April 2016 election.  

26.  In disputing the Board's assessment on evidence, credibility, country of origin information materials and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

27.  The fact that the Applicant had married with a son in Hong Kong is no ground for seeking non-refoulement protection nor ground for judicial review of the Board’s Decision.

28.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation and/or provided at the Court Hearing.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

29.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

30.  The Board considered that there was not a real risk the Applicant would face any of the proscribed forms of harm should he return to The Gambia.

31.  In §§101-106 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board was satisfied that the Applicant did not face a foreseeable, real and personal risk of being subject to “torture” as defined in Section 37U(1) of the Ordinance from PB, the Gambian government, authorities, including the NIA or SIS or anyone else if returned to The Gambia.  There were no substantial grounds for believing that the Applicant faced a real or substantial risk of being subjected to the BOR 3 risk if he returned to the Gambia.  The Board found that returning the Applicant to The Gambia would not expose him to a real risk of a violation of his right to life under BOR 2.  The Board found that there was no real risk or real chance of the Applicant facing persecution from PB, the Gambian government, authorities, including the NIA or SIS or anyone else if returned to The Gambia, for reason of his political opinion, land dispute or any other reason.  The Board found that the Applicant did not have a well-founded fear of the persecution risk. 

32.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

33.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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