Saidy Lamin Ia v. Torture Claims Appeal Board/ Non-refoulement Claims Petiton Office

CACV 267/2021

[2021] HKCA 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 267 OF 2021

(ON APPEAL FROM HCAL NO 921 OF 2017)

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Before:  Hon Chow JA and ST Poon J in Court

Date of Written Submissions: 27 September 2021

Date of Hearing: 25 October 2021

Date of Judgment:  1 November 2021

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.This is an appeal against the order of Campbell-Moffat J (“the Judge”) dated 19 May 2020 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 10 October 2017. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 May 2017 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Gambia.  He entered Hong Kong legally on 27 July 2014.  He overstayed and surrendered to the Immigration Department on 27 October 2014.  On 10 November 2014, the Applicant lodged his first non-refoulement claim by way of written representation, and subsequently on 13 April 2017, he submitted a non-refoulement claim form under the Unified Screening Mechanism seeking protection on all applicable grounds.

3.The Applicant claims that if refouled to Gambia, he would be at risk of being harmed or killed by government secret agents as a result of his openly criticising the actions of the government when several death row prisoners were executed.  In addition, the Applicant claims that his brother threatened to kill him after he had misused his brother’s funds. Details of the Applicant’s claim have been summarised by the Judge at §4 of the CALL-1 Form.

4.By a Notice of Decision dated 25 May 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Board.  On 19 September 2017, the Board heard the appeal.

6.On 10 October 2017, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found serious credibility concerns regarding the Applicant’s claims about his previous political involvement (see Board’s Decision at §§31-40).  The Board was not satisfied that there was a real chance, risk, or any substantial ground for believing that the Applicant’s brother would attempt to harm him (§§41-42).  The Board found that the Applicant was not entitled to non-refoulement protection in Hong Kong since he had failed to substantiate any of the grounds under torture risk (§§43-51), BOR 3 risk (§§52-57), BOR 2 risk (§§58-59), and persecution risk (§§60-65).

THE JUDGE’S DECISION

7.On 21 November 2017, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.

8.The Applicant sought a re-hearing of his appeal before the Board but did not complain of any procedural irregularity, unfairness or unreasonableness in relation to the appeal (see Form CALL-1 at §10).

9.The Judge emphasised that judicial review does not operate as a rehearing of a non-refoulement claim (§9).  Citing Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Judge held that an applicant has a duty to state the grounds of an intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success (§10).

10.The Judge did not find any evidence of procedural unfairness or failure to adhere to a high standard of fairness by the Board (§11), and was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review (§12).

11.Accordingly, on 19 May 2020, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal dated 20 May 2021, the Applicant simply wrote that he wanted to challenge the decision.  As the Notice of Appeal did not contain any proper grounds of appeal, the Applicant was asked to file a Supplemental Notice of Appeal.  In his Supplemental Notice of Appeal dated 6 July 2021, the Applicant raises five grounds which are summarised below:

(1)  The first two grounds contend that the Judge erred in upholding the Board’s Decision which the Applicant says are grossly unfair and unreasonable because the Board failed to properly assess and evaluate the evidence in its entirety;

(2)  The third ground contends that the Board misdirected itself in failing to find that there was a real risk of persecution arising out of his dispute with his brother;

(3)  The fourth ground is that the “earlier decision” was unreasonable and unfair; and

(4)  The fifth ground asks for further or other orders as the Court may deem fit.

13.In his Skeleton Argument dated 27 September 2021, the Applicant repeats his allegation that the “earlier decisions of the respondents” are unreasonable and unfair, and that the entirety of his evidence in support of his non-refoulement claim was not properly assessed and evaluated.

14.At the hearing of this appeal on 25 October 2021, the Applicant stated that he would rely on his Supplemental Notice of Appeal and Skeleton Argument in support of his appeal.

DISCUSSION

15.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

16.For the first three grounds of appeal, the Applicant essentially repeats matters which have already been dealt with in detail in the Board’s Decision.  As for the fourth and fifth grounds of appeal, they are plainly not viable grounds for appeal.

17.The Applicant has not demonstrated that the Judge made errors of law or failed to take account of relevant matters already placed before him, or was otherwise plainly wrong (see Re Iqbal Parvaiz [2020] HKCA 76 at §7.1).

18.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, unrepresented, appeared in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] 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.