RE KPARSUAH ROBERT GBADEYAH

CACV 41/2023, [2023] HKCA 752

On Appeal From [2023] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2023

(ON APPEAL FROM HCAL NO 38 OF 2019)

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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 KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 6 February 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2023] HKCFI 250).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 2 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 10 November 2017 rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Liberia.  He entered Hong Kong on 10 February 2017 on the strength of his Liberian passport and was permitted to remain as visitor until 24 February 2017.  He did not depart and overstayed since 25 February 2017.  On 28 February 2017, he surrendered to the Immigration Department for breach of condition by having overstayed in Hong Kong.  By way of written representations dated 10 March 2017 and 18 April 2017, he raised a non-refoulement claim on the basis that he, being a member of the Krahn tribe, would be harmed or killed by the Gio tribe because of the conflicts between his father and the Gio tribe originated from the military action of killing Gio people by the former Liberian president Samuel Doe (“Doe”).  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 10 November 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

5.  The applicant then appealed against the Director’s Decision to the Board on 21 November 2017.  On 11 October 2018, the applicant attended the hearing before the Board in person and gave evidence.  Having assessed and considered the totality of the evidence, the Board determined that the applicant would not suffer any real risk of proscribed harm should he return to Liberia in the reasonably foreseeable future.  The applicant was not physically harmed and only verbally threatened.  The Board also noted that from the Country of Origin information (“COI”), the situation between the Krahn and Gio tribes had improved and the conflicts were less serious than claimed by the applicant.  The Board considered that there was nothing in the applicant’s evidence to suggest that any animosity directed towards him as a result of his father’s actions had intensified over time or that they would now or in the future change their attitude and act on such threats.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

6.  On 7 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86, the applicant did not state any ground of review.  In his supporting affidavit, he only stated that the decision made by the Immigration Department disregarded his dangerous situation.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

7.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [13] - [19] of the Leave Decision:

“13. 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).

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

15. 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.’

16. The Board had assessed the applicant’s claim and found that it was not substantiated. There is no valid reason to challenge the Board’s Decision.

17. 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.

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

CONCLUSION

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

The Appeal

8.  On 13 February 2023, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.[5]  In his Notice of Appeal, he merely stated:

“I still have fears of return to the country of Liberia where I seek asylum from.”

9.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 April 2023, the applicant lodged his written submissions on 4 May 2023.  In those submissions, he merely repeated the factual basis and procedural history of his non-refoulement claim.

Discussion

10.  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].

11.  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.

12.  At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  Accordingly, his submissions are plainly not proper grounds of appeal.

13.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  More importantly, 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].

14.  At the hearing of the appeal, the applicant has further submitted that there is an election to be held on 10 October this year in his country, and if after the election everything becomes fine, he can then safely return to Liberia.  He therefore asks for further time to be given to him to stay in Hong Kong.  For the same reasons we have set out in [11] - [13] above, these are plainly not proper grounds of appeal against the Leave Decision.  Further and in any event, this is a factual matter (even if true, on which we express no views)  that has not been advanced before the Judge.  It is well established that this court generally will not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

15.  Accordingly, we see no basis to interfere with the Leave Decision.  The appeal has no merit and we dismiss it.