Re Bajaka Seedy

CACV 304/2021

[2021] HKCA 1711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2021

(ON APPEAL FROM HCAL 1979 OF 2018)

________________________

________________________

Before:  Hon Barma JA and Lisa Wong J in Court

Date of Judgment: 15 November 2021

____________________

JUDGMENT

____________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 2 June 2021 (“Judge’s Decision”) refusing the abovenamed applicant extension of time for an application for leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 7 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 4 August 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The bases of the NRF Claim made by the applicant, a Gambian national now aged about 47, are fears (1) of being harmed or killed by one Yokouba Bagil (“YB”); and (2) of not receiving adequate medical care in Gambia for his condition of pleural effusion.

3.For a detailed summary of the circumstances giving rise to such fears, see paragraph 6 of the Director’s Decision, paragraphs 31 to 39 of the Board’s Decision and [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 dated 2 June 2021, [2021] HKCFI 1569 (“Form CALL-1”).

4.Briefly:

(1)  The applicant had worked at a bar (“Bar”) in Serrekunda, Gambia since 2009.

(2)  YB started to frequent the Bar in about 2011.  He introduced himself as the head of the National Intelligence Agency (“NIA”), which had allegedly committed many crimes and abuses, for which its officers were not held accountable.

(3)  YB, often accompanied by 4 to 5 persons, never paid his bills.  He just kept telling the applicant to put them on credit and that he would settle them later in one go.

(4)  As the applicant was responsible for unpaid bills of the customers served by him, after a month or two, he stopped serving drinks to YB and his men, which resulted in an unpleasant confrontation although the applicant was not harmed.  

(5)  About 2 days later, a friend who was an officer of the NIA warned the applicant to flee as YB had, in his rage, falsely accused the applicant of being gay, which was punishable by death under Gambian law.

(6)  The applicant immediately moved to Congo where he found a job selling watches and electronic appliances.

(7)  However, by 2013 or 2014, he no longer felt safe in Congo as a result of the political and social turmoil and rampant crimes there.  He decided to come to Hong Kong.

(8)  Whilst in Hong Kong, he was diagnosed with pleural effusion.  The applicant believes that he would not receive good medical treatment in Gambia.   

Overstaying in Hong Kong and lodgment of NRF Claim

5.The applicant arrived in Hong Kong on 30 June 2014 and was permitted to remain until 10 February 2015[1]. However, he overstayed and surrendered to the Immigration Department on 2 March 2015.  He raised the NRF Claim by written representations dated 10 and 20 April 2015 and completed a Non-Refoulement Claim Form (“NCF”) on 26 May 2017.

Director’s Decision

6.After considering the information provided by the applicant in the NCF and at the screening interview on 4 July 2017, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)   First, the risk of harm from YB would be low.  The applicant never suffered any actual physical harm or direct threat from YB or his associates.  The perceived harm from YB is based on hearsay.

(2)  Second, the applicant never sought help from the Gambian police, simply asserting that they could or would not help him. Relevant objective country of origin information (COI) indicated that reforms are on-going in Gambia and the Gambian government has taken practical steps to monitor the conduct of the police, improve their effectiveness and reduce corruption.  There are also other avenues to seek justice in Gambia (such as the National Human Rights Unit of the local Ombudsman), to which the applicant never resorted.

(3)  Third, the perceived risk, arising from a private financial dispute localised in Serekunda, can be reduced by relocation to other parts of Gambia such as Basse.

(4)  Fourth, the Gambian healthcare system offers care services for tuberculosis (a common cause of pleural effusion) free of charge.  There is no reason to believe that the applicant will not receive adequate medical care for his condition in Gambia.

Appeal to Board and Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board.  The Board conducted a rehearing of the NRF Claim on 10 April 2018, at which the applicant gave evidence and answered the Board’s questions in English without the need for an interpreter.

8.The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  

9.The applicant was unable to explain why YB would continue to hold a grudge against him.  The Board refused to accept that the applicant would still be of interest to YB, the NIA or anyone else as a result of his refusal to serve drinks to YB in 2011 or for any other reason.  Notwithstanding that homosexuality remains criminalised in Gambia, the applicant (who is married with a child) is in fact not a homosexual man.  The Board therefore did not accept that he would be targeted for any actual or imputed homosexual orientation.  While the level of healthcare in Gambia is not the same as that in Hong Kong, the Board held that the purpose of non-refoulement protection is not to provide a mechanism by which foreign nationals can access cheaper or better medical attention.

Application for leave for judicial review and Judge’s Decision

10.The last date on which the applicant could apply for leave to apply for judicial review of the Board’s Decision under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) was 7 September 2018.

11.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1979/2018 on 19 September 2018, which was out of time for 12 days, the applicant applied for judicial review of the Board’s Decision without stating any ground on which relief was sought.  He simply asserted in his verifying affirmation dated 18 September 2018 that the Board’s Decision was unfair and unreasonable.

12.By an affirmation dated 11 March 2020, the applicant applied to “cancel the appeal application”.  By an order made on 18 March 2020, the Judge ordered that the application for leave to apply for judicial review be withdrawn.

13.By a summons dated 10 November 2020, the applicant applied to “re-open the case of HCAL 1979/2018.  Apply stay in Hong Kong, married in Hong Kong, waiting application of immigration for stay in H.K.” (sic).

14.Following an oral hearing, by the Judge’s Decision, it was ordered:

(1)  that the application for leave to apply for judicial review be reinstated;

(2)  that extension of time for the application for leave to apply for judicial review of the Board’s Decision be refused; and

(3)  that the application for leave to apply for judicial review be dismissed.

15.The Judge’s reasons for so ordering can be found in [13] to [19] of the Form CALL-1:

“13. … in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14. In the Applicant’s case, a delay of 12 days may not be regarded as significant, for which he has not provided any explanation. Given that the Applicant was by then unrepresented and that the delay was relatively insignificant, I propose to focus on the merits, if any, of his intended application.

15. However, as noted above, the Applicant has not put forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis or merits in his intended application.

16. 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.

17. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of The Gambia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and 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 consideration and assessment of the Applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.”

Appeal to Court of Appeal – paper disposal for failure to lodge written submission

16.By a notice of appeal filed herein on 11 June 2021, the applicant appealed against the Judge’s Decision.  In the notice of appeal, as well as the supplemental notice of appeal dated 24 August 2021[6], the applicant merely repeated the allegations underlying the NRF Claim.

17.In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 2 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

18.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

19.The hearing date on 1 November 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will deal with the appeal on paper on the basis of the documents already filed with the court.

Discussion

20.In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

21.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

22.The applicant did not in the Form 86 or his aforesaid affirmations point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  Nor did he condescend to any particulars as to why or how the Board’s Decision was unfair or unreasonable.  That being the case, the application for judicial review of the Board’s Decision was hopeless and leave was rightly refused.

23.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

24.The applicant did not in the notice of appeal or supplemental notice of appeal identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

25.It does not assist the applicant to just reiterate the allegations raised in support of the NRF Claim.

26.In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

27.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.

The applicant was unrepresented and absent