MANKA KUTUBO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2252/2019

[2024] HKCFI 3390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2252 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared this Court on 18 November 2024.

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

The applicant

4.  The applicant, aged 45, is a Gambian. He entered Hong Kong as a visitor on 15 June 2014 and overstayed since 14 September 2014. The applicant surrendered to the Immigration Department on 29 September 2014 and he made a non-refoulement claim on 23 October 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by the future Gambian government because he was an active member of Untied Democratic Party (“UDP”).

5.  According to the applicant, he joined UDP in 1996, which was in opposition to the then Gambian government. In September 1996, the applicant and seven UDP members were arrested for obstructing the election campaign of the then president. During the 3-month detention, the applicant was assaulted, while his family members were also disturbed and threatened by National Intelligence Agents (“NIA”). As the applicant continued his support for UDP after his release, he was rearrested multiple times. In 2011, the Gambian government imposed a high tax rate to suppress the applicant, forcing him to close down his business in 2012. In January 2014, the applicant left for Senegal. After 5-6 months, he felt Senegal unsafe as it was too close to Gambia. Therefore, he went to China in June 2014 and eventually came to Hong Kong on 15 June 2014.

6.  Although UDP is part of the current coalition government in Gambia, the applicant worried that he would be in danger once again if the newly elected government reverted back to a dictatorship. He considered both relocation within Gambia and to Senegal not viable because he would be easily found.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 November 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Gambia [13]; (ii) given the applicant’s grass-root participation in UDP, it is unlikely that he would attract any adverse interest [14]; (iii) his claimed fear of harm from the future Gambian government was a mere speculation [15]; (iv) the applicant’s decision to remain in his hometown for such a long period of time was inconsistent with the conduct of someone genuinely in fear [16]; (v) state protection would be available [18]-[21] and (vi) internal relocation would be viable [22]-[25].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 26 March 2019, the Board conducted an oral hearing.

11.  The Board did not find the applicant to be a credible witness. His evidence about the documentary proof he produced was riddled with inconsistencies and contradictions [48]-[53]. In any event, the purported problems of the applicant related to the time when Gambia was under a different government and there was no indication that he would be subjected to future risk of harm upon return. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [13]-[25], [55].

12.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

13.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision without specifying any reason to challenge the Board’s Decision.

DISCUSSION

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

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he cannot say that the Board was wrong.

17.  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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The applicant has not raised any valid ground to challenge the Board’s Decision.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.