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CACV 406/2024, [2025] HKCA 79
On Appeal From [2024] HKCFI 2375
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 406 OF 2024
(ON APPEAL FROM HCAL NO 1800 OF 2019)
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BETWEEN
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NGUNDE MOHAMEDI MUSSA |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
_____________________
| Before: |
Hon Chow JA and Lisa Wong J in Court |
| Date of Judgment: |
13 February 2025 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 23 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 2018.
BACKGROUND
2. The Applicant is a national of Tanzania. He arrived in Hong Kong on 11 February 2015, and had overstayed since 13 May 2015. On 14 May 2015, he surrendered himself to the Immigration Department. On 14 August 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a customer (Mashaka Makanzu) of his clothing business because he was unable to supply the goods required by the customer or return to the customer the money he had received. Details of the Applicant’s claims have been summarised by the Judge at §§4-8 of the judgment dated 23 September 2024 (“the Judgment”).
3. By a Notice of Decision dated 10 August 2018 (“the Director’s Decision”), the Director dismissed 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].
4. The Applicant appealed the Director’s Decision to the Board. He attended a hearing before the Board on 24 May 2019 and gave oral evidence. On 18 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-14 of his decision, as follows:
“[12] During the hearing, the [Applicant] told the Board that the money was sent in cash to the agent, who would then transfer to the supplier [22]. Meanwhile, the [Applicant] could not recall the number of trousers the customers ordered, nor could he remember any of the clothing company that he bought clothes from in China. He was also unable to tell the Board the name of the agent [23].
[13] The Board noted that the [Applicant] gave inconsistent evidence as to when he was first threatened by the customer and where he met the supplier in China [32]-[33]. The Board also considered it unpersuasive that no receipt was issued for the transfer of such a large sum of money and that it was transferred in cash, rather than through a bank [35]. Meanwhile, the [Applicant’s] evidence about his dealing with the customer and retailer was vague as he could not remember (i) the name of the agent, (ii) the number of trousers the customers ordered and (iii) the name of the clothing company that he bought clothes from in China [36].
[14] The Board found the [Applicant] had fabricated the totality of his claim. It was not accepted that he was involved in a transaction with the supplier and customer or that he was threatened by the customer [37]. In any event, the issue between the [Applicant] and the customer was a private dispute with no consent or acquiescence from the Tanzanian government. Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [39]-[57].”
THE JUDGE’S DECISION
5. On 28 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of a “decision made by the Immigration Department dated 18 June 2019”. No ground of review was given in the Form 86. In his supporting affirmation, the Applicant attached a copy of the Board’s Decision and stated that he would like to “reject and review” the decision made as the decision-maker disregarded his dangerous situation. Since the Director’s Decision had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review.
6. On 23 September 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:
“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…
[19] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
…
[21] For the reasons given above, the Board rejected the [Applicant’s] evidence in support of his claim. The [Applicant] has raised no valid reason to challenge the Board’s finding of the facts.
[22] In the circumstances, the [Applicant] fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision”
THIS APPEAL
7. In his Notice of Appeal filed on 27 September 2024, the Applicant stated the following:
“[The Applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]
8. The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 6 December 2024. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.
DISCUSSION
9. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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 of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).
10. Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
11. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
12. The Applicant’s appeal against the Order has no merit, and is dismissed.
(Anderson Chow)
Justice of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The Applicant, acting 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 of 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.
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