Re Gaco Nomer Bergonia

CACV 383/2020

[2021] HKCA 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2020

(ON APPEAL FROM HCAL NO. 1855 OF 2018)

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Before:  Hon Cheung JA, B Chu J and S T Poon J in Court

Date of Hearing:  26 January 2021

Date of Judgment:  29 January 2021

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

The Appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung in which he refused to grant leave to the applicant to apply for judicial review.

Factual Background

2.The applicant is a national of the Philippines.  He overstayed in Hong Kong since 6 September 2009.  He raised a non-refoulement claim on 27 November 2009.

3.The basis of the applicant’s claim is that he would be harmed or killed by members of an anti-government group named Alex Boncayao Brigade (“ABB”) for compromising its location leading to the arrest of some of its members.

4.The background facts have been summarized in the decision of the Judge at [4]-[6].

The Director’s Decision and the Director’s Further Decision

5.The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 22 January 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

6.By a further decision of the Director of 17 May 2017, the Director also assessed BOR 2 risk (risk of violation of the right to life) in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 6 February 2015. After a hearing held on 3 February 2016, the Board dismissed the applicant’s appeal on 23 August 2018 (‘the Board’s Decision’).

8.The Board found that the assassination incident that the applicant alleged happened more than 9 years ago.  There was no evidence that ABB still exists.  There was no evidence of the location of where the assassination took place.  Internal relocation was possible.

Decision of the Judge

9.The Judge held that the applicant was unable to show that he has any reasonable prospect of success for this intended judicial review.

Grounds of Appeal

10.The applicant in the notice of appeal stated that he will face hardship if he is to return to his home country.  He stated that the Board relied on source of information not officially recognized or was simply hearsay.  He stated that the cases the Board relied on were outdated.

11.In his written submissions, the applicant had written pages of general non-refoulement claim legal principles and case authorities without specifying how those principles related to his case.

Our View

12.During the appeal, the applicant mentioned that he had produced to the Board a screen shot from You Tube referring to the assassination incident.  This was not referred to by him in his grounds of appeal, nor in his skeleton submissions.  The screen shot was not included by the applicant in the appeal bundle nor produced by him during the appeal. We do not see the relevance thereof in the light of the Board’s Decision at paragraph 8 above.   

13.We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

15.We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person