Re Sanneh Ebrima

CACV 175/2022

[2022] HKCA 1844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2022

(ON APPEAL FROM HCAL NO. 402 of 2019)

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Before:  Hon G Lam JA and Barnes J in Court

Date of hearing:  11 July and 7 December 2022

Date of Judgment:  21 December 2022

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Bruno Chan (“Judge”)  on 28 April 2022[1] refusing 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 (“Board”)  dated 26 November 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”)  dated 13 May 2016 and 22 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Gambian national.  He last arrived in Hong Kong on 28 September 2014 and was permitted to remain as a visitor until 27 December 2014.  He did not depart, and has overstayed.  On 2 January 2015 the applicant surrendered himself to the Immigration Department, and raised his non-refoulement claim on 27 February 2015. 

3.The applicant’s claim was based on the fear that, if he returned to The Gambia, he would be harmed or even killed by supporters of the Alliance for Patriotic Reorientation and Construction (“APRC”)  and/or former President Yahya Jammeh.  The factual background was summarized at paragraphs 24 to 39 of the Board’s decision.

4.By notices of decision dated 13 May 2016 and 22 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former notice covered BOR 3 risk[2], persecution risk[3], and torture risk[4], while the latter covered BOR 2 risk[5].

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 November 2018, during which the applicant gave oral testimony and answered questions from the Board as well as the Director’s lawyer, with assistance from a Wolof language interpreter.  At that hearing, the applicant was represented by a duty lawyer from the Duty Lawyer Service.

6.The Board took the view that the applicant was not a witness of truth, due to the applicant having given somewhat different accounts of matters in support of his claim in his non-refoulement claim form, his screening interview with the Director and his oral testimony.  In making an adverse assessment on credibility, the Board also took into account other inconsistencies, gaps and omissions, vagueness and seemingly implausible aspects of his evidence. 

7.At the Board hearing, the Board specifically brought such concerns to the applicant’s attention[6] and invited him to explain, however he was unable to provide satisfactory explanations.

8.The Board found that there was no real risk of harm for the following reasons: (1)  the applicant had not been threatened, attacked, intimidated, harmed or harassed by the authorities since 2001, (2)  the APRC and former President Jammeh have been ousted from power, and (3)  under the new Gambian government there has been significant improvements to the rule of law and respect for human rights and democratic principles. 

9.The Board found that there was no real risk of harm in the event of refoulement.  Thus on 26 November 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

10.On 12 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation he stated that due to the political chaos in The Gambia, his life would be in severe danger if he were to return to his home country.  However, he did not raise any specific grounds for judicial review.

11.Following consideration of the documents only, on 28 April 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [16] of the Form CALL-1 as follows:

“14. 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.

15. In the Applicant’s case, the Board rejected his claim essentially on its factual findings based on reliable COI and for the detailed analysis and reasoning set out in paragraphs 40 – 75 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

16. 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.”

Appeal to this Court

12.On 4 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

13.However, the applicant did not provide any particulars in support of his grounds of appeal.

14.The applicant lodged written submissions on appeal on 20 June 2022.  Those submissions largely consist of general legal principles and quoted passages from case authorities, without any explanation as to how they specifically advance the applicant’s case.  The applicant also submitted that the Board erred by simply trying to see whether it could find fault with the Director’s decision, that the Board failed to scrutinize the Director and that it is a general practice of the Board not to question or find fault with the Director’s decision.  As well, he submitted that the Board ought to have considered country of origin conditions.  However, he did not provide any details or particulars in support of his arguments, or identify any specific errors in the Judge’s decision.

15.During the hearing before us on 11 July 2022, the applicant wrote in English a further submission, saying that an alliance was formed between the current president’s party with the former president’s party, that the President surrounded himself with the same people who killed and tortured innocent civilians, and that no reform whatsoever has been done.  While the submission was written in English, we noted that the applicant did not seem to fully understand the spoken English used in the proceedings.  As the applicant had the assistance of a Wolof language interpreter when he appeared before the Board, we decided to adjourn the hearing so that such an interpreter could be found to assist him.

16.However, despite earnest efforts made, such an interpreter could not be found.  We therefore have no choice but to resume and conduct the hearing on 7 December 2022 in English.  We are satisfied that the applicant understood the purpose of the hearing and in particular our invitation to him to supplement his written submissions by any oral submissions he wished to add, and that he was able to submit orally every point that he wished to supplement or highlight in support of his appeal.

17.During the resumed hearing, the applicant basically repeated what he had already said about his fear of being harmed should he be returned to Gambia, adding that people were still looking for him at his home.  The applicant further suggested that should he be deported from Hong Kong, he wanted to be sent to the Philippines as his wife lives there.  

Legal principles

18.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [7]; Re Md Shohel Sheak [8] ; and Re Limbu Birkhaman [9]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

19.As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or written arguments, or identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [10]; Re Aziz Nasir [11]; Re Kharsu Numan [12]; Re Salim Ahmed [13].

20.As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

21.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due in part to its adverse finding on the applicant’s credibility.  More importantly, the Board found that there was no real risk of harm for the following reasons: (1)  the applicant had not been threatened, attacked, intimidated, harmed or harassed by the authorities since 2001, (2)  the APRC and former President Jammeh have been ousted from power, and (3)  under the new Gambian government there has been significant improvements to the rule of law and respect for human rights and democratic principles. 

22.Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board. The court will not interfere with such assessments unless they are reversible on public law grounds.  There are no such valid public law grounds in this case.

23.Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

24.As to the applicant’s wish to be deported to the Philippines to reunite with his wife, that is not something within our power to deal with.

25.For these reasons, we are of the view that the appeal has no merits and accordingly this appeal is dismissed.

The applicant, unrepresented, acted in person.