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Yahya Sanyang v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 April 2024
Neutral Citation[2024] HKCFI 970
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL180/2024
Year2024
HCAL180/2024 YAHYA SANYANG v. TORTURE CLAIMS APPEAL BOARD

HCAL 180/2024

[2024] HKCFI 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 180 OF 2024

BETWEEN
Yahya Sanyang Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party

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

Following:

consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 November 2022 be refused; and

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

Observations for the Applicant:

1. The Applicant is a 39-year-old national of the West African country The Gambia who arrived in Hong Kong on 15 July 2014 as a visitor with permission to remain as such up to 13 October 2014 when he did not depart and instead overstayed, and on 22 October 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 Gambian authorities and/or the National Intelligence Agency (“NIA”) due to his father’s political activities. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Village Bwiam, District Foni Kansala, Western Gambia where his father was a military officer in the Gambian Army. After obtaining an engineering diploma from the Gambian Technical College, the Applicant worked as a supervisor in the National Water and Electricity Company, and followed his father’s footstep to support the political party Alliance for Patriotic Reorientation and Construction (“APRC”) then the country’s ruling political party.

3. In 1998 the Applicant’s father retired from the Army and joined as a member of APRC participating in their local youth projects, and had over the years grown very popular amongst the young voters but much to the dislike of the then President Jammeh who then in 2006 had the Applicant’s father arrested by the National Intelligence Agency (“NIA”).

4. Fearing that the NIA would also come after him, the Applicant shortly thereafter in 2006 fled from the country with his mother and siblings for Dakar in Senegal, but later when he heard that his father had been killed by NIA in The Gambia, he feared that NIA would send agents to find and kill him in Senegal, the Applicant therefore left Senegal on 6 July 2014 for China, and from there he then travelled to 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 9 January 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer.

5. While released on recognizance pending the determination of his claim, the Applicant was twice arrested by police for possession of dangerous drugs, and for which he was subsequently convicted and given respective fine and imprisonment.

6. By a Notice of Decision dated 3 April 2017 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”).

7. 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 NIA or the Gambian authorities upon his return to The Gambia as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any adverse interest of the Gambian authorities in him at all in the past up to the time when he was able to leave the country without any problem or incidents, that the situation in The Gambia has since changed significantly after President Jammeh who jailed his father was defeated in the 2016 election and had left the country in exile and that the newly elected President Barrow has launched significant reforms to the country in particularly as to NIA and to promote real democracy in the country that it is not accepted that there would still be any adverse interest in the Applicant or that he would face any real risk of harm from the authorities upon his return to The Gambia, that in the absence of any involvement of the current government in any political persecution in the past 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 spread across a vast territory that it...

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