JATTA LAMIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1020/2017

[2020] HKCFI 2049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1020 OF 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review be granted.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally on 9 June 2014 and thereafter overstayed.  He surrendered to the Immigration Department three months later, on 10 September 2014 and was released upon recognisance on 8 October.  The applicant submitted a non-refoulement claim by way of written representation on 24 September 2014.  His non-refoulement claim form was submitted on 24 September 2015.

2.  The applicant attended a screening interview on 29 December 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 2 March 2016 and by Notice of Further Decision (re BOR 2) on 21 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard his appeal on 9 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 15 September 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The applicant claims he is at risk of harm from the National Intelligence Agency (“NIA”); from his brothers; from the government; from two purchasers of land and because he is now a homosexual.

5.  The applicant is a Gambian national.  He was born on 27 December 1981, in New Yundum.  He is single with six years of formal education.  The applicant worked for his maternal uncle Bun Sanneh, who traded in materials but was also involved in anti‑drug operations.  In 2010, the applicant came to learn that his uncle had been arrested by the NIA for corruption and he believed that, as his nephew and business associate, he would also be arrested.  He has not heard of his uncle since that time.  As a result, the applicant went to Senegal using his ID card and remained there for four years without incident.  During this time, the applicant obtained a Gambian passport which he picked up from a contact at the Gambia/Senegal border, having arranged to have an exit stamp placed upon the new passport.

6.  The applicant also claims that at the same time in 2010, he had a dispute over a parcel of land which he had dishonestly sold to two separate people on separate occasions without his brother’s agreement.  As the applicant had fled to Senegal, he was not present when the two buyers discovered the deceit and does not know the outcome as neither he nor his family has heard any more about it.  However, he fears a civil suit.

7.  At the age of 32, the applicant came to Hong Kong and says that he then became a homosexual.  He says this was his first sexual experience of any kind.  Homosexuality is against the law in Gambia and if he returns he will be prosecuted.  However, he confirmed that his sexuality is not known in Gambia as he had never had a relationship there and it is also not known in Hong Kong.

The non-refoulement claim

8.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

9.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim.  The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

10.  The applicant was legally represented before the Adjudicator.  The Director was also legally represented.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  It was conducted in English, despite a late request for it to be conducted in Mandinka, after the Adjudicator confirmed that the applicant had an excellent command of English.  The Adjudicator found that, on the facts, the applicant had failed to satisfy the burden of proof placed upon him under any head.  He noted that the applicant had no idea what his uncle was arrested for or the circumstances of the arrest.  On his own case he may be a fugitive from the criminal law if his belief, that his uncle was arrested for corruption and that he is wanted for questioning, is correct.  He is also a fugitive in respect of his dishonest sale of land to two separate individuals.  He also noted that fleeing the possibility of proper legal sanction in respect of the land dispute was not a consideration.  There was no evidence at all of any harm or actual threat of harm for any of the matters raised and therefore the fear of risk of harm was speculative.

11.  The Adjudicator did not accept a bare assertion without more, that the applicant was a homosexual.  He said, at paragraph 7:

“The Appellant also makes a bare assertion that he is a homosexual hence says that he will face penalty if he returns to Gambia. The topic will be addressed in more detail later in this Decision. At this stage it suffices to say that (a) I do not accept a bare assertion without more to have discharged the burden of proof even though the standard of proof is relatively low, (b) the Director does not have the duty to disprove a bare assertion, (c) in any event, even if he was a homosexual, on his own story, nobody knows about his asserted homosexuality back in Gambia, and (d) even if he were known in Gambia to be a homosexual, which he is not so known, the law in Gambia is not such that he will face ‘torture’ under Torture Law or face CIDTP or Persecution.”

The Adjudicator went on to identify a limited snapshot of the view of the current government of Gambia on homosexuality but I note that it refers to future decriminalisation at some uncertain date.  The Adjudicator’s analysis of persecution risk at §§26-28 was open to criticism as was his application of the facts to that test. In particular, he was in error when he found that the test for assessing risk under BOR 3 and for persecution are “virtually the same” and that the applicant was required to establish he has suffered past “severe injury” or “serious harm” to amount to torture, CIDTP and/or persecution[1]. There is no requirement of past ill-treatment or severe injury or serious harm, in order to establish risk of future harm: AM v Director of Immigration[2] at §§118-9 per McWalters J (as he then was).  These may be indicators of future harm but they are not a pre-requisite in order to establish a well-founded fear of future harm.

Leave to apply for judicial review

12.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

13.  The applicant complains that the decision of the TCAB was unfair and unreasonable.  There were no formal grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

14.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers and the two general grounds carefully.  I have looked in particular inter alia, into the suggestion that the applicant is a homosexual, and would be the subject of criminal sanction if returned to Gambia.  I have also considered the test which was applied and the manner in which the Adjudicator analysed this claim on the facts.  There is an argument that the Adjudicator misapplied the law and/or was unfair and unreasonable in his assessment of the claim.

15.  In my judgement, there is a reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be a realistic prospect of success if he were to be granted leave.  I therefore grant leave 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