TOURAY SARJO v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review

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

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 November 2019 be refused; and

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

Observations for the Applicant:

1.   The Applicant is a 36-year-old national of the West African country The Gambia who arrived in Hong Kong on 23 May 2014 as a visitor with permission to remain as such up  to 22 August 2014 when he did not depart and instead overstayed, and on 23 September 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 high priest of his home village for failing to participate in some religious ritual or ceremony required of all males reaching adulthood in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in a village in Gunjur, West Coast Region, The Gambia where all males in the village upon reaching the age of 18 years would be summoned by the high priest of the village to attend certain religious ritual and ceremony inside some forest during which they would be subjected to brutal and violent physical exertions and beatings that some were not able to survive.

3.  Upon reaching the age of 18 but as he was still attending school in a neighboring district, the Applicant managed to delay attending the ceremony, but after finishing school and was about to return to his home village, the Applicant was advised by his mother to stay away to avoid the religious ritual, and so he moved to stay in another district.

4.  However, when he later heard that the high priest and the village council members had come to his mother looking for him, the Applicant became fearful for his safety, and so on 11 May 2014 he departed The Gambia for China, and from there he later travelled to Hong Kong and subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 October 2018 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 21 November 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”).

6.  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 high priest in his home village upon his return to The Gambia as low due to the absence of or low intensity and frequency of past ill-treatment from the high priest, that there is no evidence of any real intention of the high priest to seriously harm or kill him other than the Applicant’s own speculations, that in any event it was a private dispute between him and the high priest in his home village only without any official involvement that state or police protection 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 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Banjul or Brikama where it would be difficult if not impossible for anyone to locate him.

7.  On 4 December 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 8 November 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board accepted the Applicant’s claim of fear of harm from the high priest in his home village for failing to participate in the religious ritual or ceremony in his home village but found no reliable evidence of any intention of the priest to harm or kill him other than his own speculations, and that in any event it was a private religious dispute between him and the high priest in his home village only without any official involvement that state or police protection would be available to the Applicant upon his return to The Gambia as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home village without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 31 May 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.    

10.  By then the Applicant was also 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 8 February 2020, the Applicant was therefore more than 1 year and 3 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.

12.  In the Applicant’s case, a delay of more than 1 year and 3 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and at the hearing of his application he just asserted that he never received the decision in the mail until much later when he was informed by his immigration officer but by then he was already seriously out of time with his intended application.

13.  The record shows that the decision was sent on the same day of 8 November 2019 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any reliable evidence to corroborate his bare assertion, I am not satisfied that the Applicant has provided any good or valid justification for his such serious delay.      

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.  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.

18.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any valid reason or justification 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