CAMARA PA HALILU v. TORTURE CLAIMS APPEAL BOARD

HCAL 2985/2019

[2022] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2985 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 the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of The Gambia who arrived in Hong Kong on 16 November 2014 as a visitor with permission to remain up to 14 February 2015 when he did not depart and instead overstayed, and on 16 February 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to The Gambia he would be harmed or killed by the government authorities over some false charge of homosexuality which is a criminal offence in The Gambia. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Banjul, The Gambia. After leaving school he made his living by running a shop in Serekunda selling electronic appliances such as laptop computers and mobile phones.

3.  One day in November 2014 while he was hanging out with his girlfriend somewhere in Banjul, he received a call from his neighbor that some men who identified themselves as government officials had come to his home looking for him for what his neighbor suspected to be some false charge of homosexuality which was a criminal offence in The Gambia punishable with heavy imprisonment, as some of his friends had also been arrested for similar charges.

4.  As the Applicant became fearful of being tortured by the authorities into confessing to such a false charge, and in view of the strong stance of the government against the LGBT groups that he did not think that he would get any due process or fair trial if arrested for such charges, he therefore fled to Dakar of neighbouring Senegal to stay in a friend’s place, and on 15 November 2014 he departed Senegal for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 3 August 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 found no reliable evidence or basis that he was being pursued by the Gambian authorities other than some hearsay and speculation of his neighbor given the facts that he had never been known to be a homosexual and that he was able to leave the country without any difficulty that the credibility of his claim is seriously in doubt, and that based on relevant Country of Origin Information (“COI”) and with the subsequent reforms implemented by the Gambian government since the defeat of the previous President Jammeh that it is not accepted that if the Applicant were indeed to be arrested and charged by the authorities that he would not be entitled to due process with the right to legal representation and to defend whatever criminal charges he were to face in a fair trial under the legal and judicial system in The Gambia that there are no substantial grounds for believing that the Applicant will be subject to any risk of harm under any of the applicable grounds upon his return to The Gambia.

7.  The Applicant never brought any appeal or petition to the Torture Claims Appeal Board (“Board”) against this decision of the Director.

8.  Meanwhile on 11 November 2016 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 1 December 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 Risk upon his return to The Gambia.

9.  On 3 May 2018 the Applicant lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal dated 27 April 2018 was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance for appeal to the Board, the Applicant made an application for its late filing in section 5 of his Notice of Appeal in which he gave the following explanation:

“I was unable to complete my appeal on time due to my long remind detention in Lai Chi Kok detection centre which I was accused of a crime that I didn’t commit or other words I didn’t have any knowledge of it. At that moment I receive the appeal form I was not in my correct state of mind hence I have been taken to court for several months and the prosecutor keeps on asking for adjournment for the purpose of seeking legal advice. So I was very agitated that I couldn’t concentrate on my torture claim or to even appeal at the right time.”

10.  In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a written notice of decision dated 26 September 2019, the Board refused to allow his application for late filing of his Notice of Appeal.

11.  In its decision the Board found the Applicant’s Notice of Appeal to have been late by more than 1 year and 4 months, that such delay was very serious and substantial, that his explanation of being detained at Lai Chi Kok Reception Centre over some criminal offence cannot be accepted as a valid reason for such lengthy delay, that on the basis of the evidence presented for his claim in the Director’s decision that it clearly did not engage the BOR 2 ground and that the Applicant had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to The Gambia, and that there were no other relevant matters of fact within its knowledge which might amount to special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

12.  On 10 October 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3)  Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in The Gambia;

(4)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in The Gambia and misdirected himself as to the extended meaning of state protection;

(5)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision;

(8)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure; and

(9)  Procedural Impropriety/Unfairness in failing to fix a hearing for the Applicant in violation of his legal right.

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and 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 in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to apply the correct standard of proof, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. In fact, on the basis of his own case as presented to the Director and recorded in the Director’s both First and Further Decisions, none of these assertions are in anyway relevant or applicable to the Board’s reasons for its decision not to allow the late filing of the Applicant’s Notice of Appeal, and as such I do not find any of them reasonably arguable for his intended challenge.

14.  As for his last complaint that the Board failed to fix a hearing for his application, as noted above that it is clearly the legislative intention that Section 37ZT(2) requires the Board to decide on such preliminary issue of the late filing of an appeal against the decision of the Director regarding the non-refoulement claim of a claimant without any hearing that this ground is also not arguable for the Applicant’s intended challenge 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 Board rejected his claim essentially on its adverse findings of no good reason for his serious delay or of any other relevant matters of fact within its knowledge under Section 37ZT(2) of the Ordinance including the merits of his appeal (see [18]of the Board’s decision) as held by the Court of Appeal to be relevant in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, and in the absence of any error of law or procedural unfairness in the decision of the Board being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.  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 respective consideration and assessment of the Applicant’s claim or his application for the late filing of his appeal.

18.  Furthermore, the Applicant recently on 11 June 2022 and 23 June 2022 in writing requested to withdraw his application as he has been detained by the Immigration Department for months and that he now just wants to return to his home country.

19.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of his wish to return to his home country, I 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