Re Elhadj Adamou Sani
Read the full judgment text of CACV 148/2021 on BabelCite. This Court of Appeal judgment was delivered on 14 September 2021 before Barma JA, G Lam JA.
Non-refoulement – judicial review – leave to appeal – standard of review – Board's factual findings – implausibility – internal relocation – state protection – applicant from Niger/Nigeria – fear of harm from village chief or Muslims – Board rejected claim as implausible – Director and Board decisions upheld – applicant sought leave to apply for judicial review – Deputy High Court Judge refused leave for lack of reasonably arguable ground – applicant appealed to Court of Appeal – appeal dismissed – applicant failed to identify any error in judge's decision – judge was plainly right to refuse leave – no public law error identified.
Legal issues: Appeal against refusal of leave to apply for judicial review
Outcome: Appeal dismissed; refusal of leave to apply for judicial review affirmed.
Cited by 2 cases · Cites 6 cases
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CACV 148/2021 [2021] HKCA 1289 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 148 OF 2021 (ON APPEAL FROM HCAL NO 678 OF 2018) ____________________
____________________ Before: Hon Barma and G Lam JJA in Court Date of Judgment: 14 September 2021 _________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): Introduction 1.On 26 March 2021, Deputy High Court Judge Bruno Chan (“the Judge”)[1] refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 6 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 23 March 2017 rejecting the applicant’s non‑refoulement claim. 2.On 7 April 2021, the applicant filed a Notice of Appeal against the Judge’s decision. Background 3.The applicant was born in Niger and raised in Nigeria. He last arrived in Hong Kong on 13 July 2013 using his Nigerian passport and was permitted to remain as a visitor until 18 July 2013. He did not depart and overstayed, and his passport was used by another person for intended departure from Hong Kong on 18 July 2013. The applicant was arrested by police on 18 December 2013 and was transferred to the Immigration Department on 20 December 2013. He lodged a non‑refoulement claim on 22 December 2013. 4.The applicant’s claim was based on the fear that, if he returned to Nigeria, he would be harmed or even killed by the chief priest of the village of Umuagor or by the advisors to the deceased village chief who was known by the title of Eze. He also feared that if he returned to Niger, he would be in danger because he is Christian, while the local people in Niger are Muslims. The factual background was set at paragraphs 1 to 12 and 25 to 54 of the Board’s decision, and was succinctly summarized by the Judge at [2]–[3] in his decision contained in the Form CALL‑1. 5.By notice of decision dated 23 March 2017, the Director assessed the applicant’s non‑refoulement claim on all applicable grounds and determined it against the applicant. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] 6.The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 8 January 2018, during which the applicant answered questions from the Board. The Board considered the applicant’s narrative to be implausible and speculative, and in particular rejected the applicant’s claim of being drugged and abducted for human sacrifice in Nigeria and of his subsequent escape while drugged. The Board also found as a fact that the applicant had never been harmed in Niger due to his religious belief. The Board found that there was no real risk of harm in the event of refoulement. The Board also found that reasonable state protection was available and that internal relocation was viable. As a result the Board dismissed the appeal on 6 April 2018 on all the applicable grounds. Decision of the court below 7.On 19 April 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. He did not set out any grounds for judicial review in his application. 8.Following consideration of the application based on the documents only, on 26 March 2021 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [8]–[11] of the Form CALL‑1 as follows:
Appeal to this Court 9.On 7 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations. 10.Despite the directions issued by the Registrar of Civil Appeals on 29 June 2021, the applicant has failed to lodge any written submissions. In accordance with those directions, the hearing date of the appeal is vacated and the appeal is disposed of on paper without an oral hearing. 11.The applicant did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. This in itself is fatal to the appeal. 12.In the present case, the Board rejected the applicant’s claim because it found the applicant’s factual account to be implausible. The Board also found that internal relocation was viable and that reasonable state protection was available. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. There was nothing put before the Judge to show that the Board committed any public law error. The Judge is plainly right to refuse leave. 13.For these reasons, this appeal is dismissed.
The Applicant, unrepresented, acting in person [2] This refers to the 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 (Cap 383). [3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115). [5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). |
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