Re Barrow Lamin

CACV 192/2022

[2022] HKCA 1214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2022

(ON APPEAL FROM HCAL NO 898 OF 2019)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment: 22 August 2022

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J U D G M E N T

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

1.This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 28 April 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 1217).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 30 January 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 May 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 10 May 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

4.By a letter dated 9 June 2022, the applicant requested to withdraw the present appeal on the basis that (a) he asked the Immigration Department to repatriate him back to Gambia; and (b) any risks or threats to his safety regarding his non-refoulement claim were no longer existent, and therefore it would be safe for him to return home to Gambia now.  By two further letters respectively dated 13 July 2022 and 18 July 2022, the applicant reiterated that he had no intention to proceed any further with the present appeal and requested to withdraw his appeal.

5.On the basis of his requests to withdraw his appeal made by way of the letters respectively dated 9 June 2022, 13 July 2022 and 18 July 2022, we dismiss the applicant’s appeal.  In any event, his appeal fails for the lack of merit, which we will explain further below.

Background

6.The applicant is a national of Gambia.  He last arrived in Hong Kong on 12 October 2014 and was permitted to remain as visitor until 10 January 2015.  He did not depart and overstayed and surrendered to the Immigration Department on 12 January 2015.  On 23 January 2015, he raised a non-refoulement claim on the basis that he would be harmed or killed by his elder brother owing to a land dispute.  Factual details of his non-refoulement claim were summarised by the Deputy Judge at [5] ‑ [8] of the Leave Decision.

7.As noted by the Deputy Judge at [3] and [9] ‑ [10] of the Leave Decision, by their decisions respectively dated 11 May 2017 and 30 January 2019, the Director and the Board dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4]. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.  In particular, in dismissing his appeal against the Director’s Decision, the Board found that the alleged threat from the applicant’s brother did not constitute real and personal threat of serious harm or death against the applicant and that the applicant failed to discharge his burden of proving the factual basis to support his non-refoulement claim.

The Leave Decision

8.On 2 April 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision on the basis that his life would be under threat if he returned to Gambia.  As he did not request for an oral hearing, the Deputy Judge considered his application on paper.

9.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [13] ‑ [14] of the Leave Decision:

“13. This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the Applicant’s evidence in total. But even on that evidence, it found he had failed to prove the factual basis to support of his case. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non‑refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

14. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.”

The Appeal

10.On 10 May 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, the applicant claimed that the Director, the Board and the Deputy Judge had failed to give proper weight to the presence of state acquiescence in his case and the Board failed to make sufficient enquiry before finalising its decision.  He further asserted that he had no or limited options at his disposal to bring his evidence before the Board and the Board failed to give sufficient chance to the applicant to arrange relevant evidence in support of his non‑refoulement claim and his appeal.  He further alleged that the Director referred to Country of Origin information which “suited his pre-conceived conclusion” and that it was a “clean case of unfair attitude shown by the Director”.

11.Despite the directions made by the Registrar of Civil Appeals on 10 May 2022, the applicant did not lodge any written submissions.

12.As mentioned above, by the letters respectively dated 9 June 2022, 13 July 2022 and 18 July 2022, the applicant requested to withdraw his present appeal.

Discussion

13.The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.At the outset, nowhere in his Notice of Appeal did the applicant identify with specific particulars the error made by the Deputy Judge in the Leave Decision. His complaints are mainly directed at the Board and the Director.  His complaints are also all general and vague without specific particulars or evidence in support and do not constitute proper grounds of appeal.  On this basis alone, his appeal must fail.

16.In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, there was no error of law or irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

17.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acted in person