RE ANTHONY OWUSU

CACV 415/2022

[2023] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2022

(ON APPEAL FROM HCAL 2496/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 11 October 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 31 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 January 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk^[1].

Background

2.  The applicant is a national of Ghana. He entered Hong Kong on 19 April 2005 as a visitor, but had overstayed since 20 May 2005.  On 22 January 2009, he was arrested by the police for overstaying. He thereafter lodged a non-refoulement claim on 26 January 2009.

3.  The applicant’s claim was based on a fear of being harmed or killed by elderly leaders of his village because he refused their request to succeed his father’s position as the leader of the Shrine.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 29 August 2014 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed against the Director’s 1^st Decision to the Board, and on which an oral hearing was held on 12 December 2014.  The Board found that the applicant was unable to substantiate his fear or a risk of harm on the evidence.  In any event, the Board found that state protection and options of internal relocation were available to him.  The applicant’s appeal was dismissed by the Board’s decision dated 10 June 2015 (“the Board’s 1^st Decision”).

6.  The applicant did not thereafter seek to challenge the Board’s 1^st Decision by way of judicial review.

7.  Subsequently, a claim based on the ground of BOR 2 risk became available to the applicant.  Although an invitation (by the Director to the applicant by letter dated 21 December 2016) to submit additional facts pertaining to a claim based on the BOR 2 risk was made to the applicant that the applicant did not respond to the invitation, and his claim on all applicable grounds including the BOR 2 risk was determined on the papers by the Director.

8.  By his further decision dated 9 January 2017, the Director rejected the applicant’s claim (“the Director’s 2^nd Decision”).  Taking into account all relevant circumstances, the Director considered that the applicant’s non‑refoulement claim based on the BOR 2 risk was not substantiated.

9.  The applicant then appealed against the Director’s 2^nd Decision to the Board.  The Board found that on the evidence, there was nothing to suggest that the applicant would or might be deprived of his inherent right to life if he were refouled to Ghana.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal by its decision dated 31 October 2018 (“the Board’s 2^nd Decision”).

The Judge’s decision

10.  The applicant filed a Form 86 on 7 November 2018 seeking to judicially review the Board’s 2^nd Decision but did not set out any grounds for review.

11.  In his supporting affidavit filed on 7 November 2018, the applicant deposed:

“My case was handle[d] badly so I want to appeal for judicial review to look into my case.”

12.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [18] to [24] of the CALL-1 Form: 

“18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s BOR 2 Decision should be examined with rigorous examination and anxious scrutiny.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

21. There is no valid reason to challenge the Board’s Decision.

22. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.     I refuse to grant leave for the applicant to apply for judicial review of the Board’s BOR 2 Decision. Accordingly, I dismiss his application.”

Grounds for appeal

13.  In the Notice of Appeal filed on 21 October 2022, the applicant merely stated:

“I want to challenge the [Judge’s] decision.”

14.  In his written submissions dated 30 December 2022, the applicant repeated the procedural background to his claim and the reasons for his fear of a return to Ghana.

15.  We heard the appeal on 1 February 2023.  The applicant appeared at the hearing, reiterated his concerns for his safety if he was refouled and further submitted that it would be undesirable for him to return to Ghana because he had already been residing in Hong Kong for almost 20 years, but otherwise had nothing substantial to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

16.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

17.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully, or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

18.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge is not required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.