RE DARBOE LANSANA

CACV 294/2020

[2021] HKCA 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2020

(ON APPEAL FROM HCAL 992/2018)

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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 Bruno Chan given on 14 July 2020 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 (“Board”) dated 24 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Gambia.  He entered Hong Kong on 26 November 2014 as a visitor and was permitted to remain until 24 February 2015.  He was arrested for trafficking in a dangerous drug on 24 January 2015.  He was convicted and sentenced to 10 months of imprisonment.  After he was released from prison, a removal order was issued against him and the applicant lodged a non-refoulement claim on 26 May 2015 and 6 July 2015. 

3.  The applicant’s claim was based on alleged threats from the Gambian government because he was active in an opposition political party (United Democratic Party, or “UDP”).  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 27 February 2018 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 15 May 2018, the Board dismissed the appeal on 24 May 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [93] of the Board’s Decision, the Board held that it had serious reservations in relation to the applicant’s claim that he was a member and youth organizer for the UDP.   The Board also held that the applicant is unlikely to be subject to any of the proscribed harms from the current government of Gambia (which has changed to the UDP) upon his return.

The judge’s decision

7.  The applicant filed a Form 86 on 1 June 2018 which contained the following grounds for judicial review, as summarized by the judge at [10] of the CALL-1 Form:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case that he was tortured at the behest of and with full collusion of the police and the state law enforcement agencies that the state would be held liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(2) that the Director failed to consider or give sufficient weight to the relevant COI which support the applicant’s aversions that the police in Gambia would not be able to protect;

(3) that the Director only relied on those COI which suited his pre-conceived conclusion which was a clear case of unfair attitude shown by the Director which is itself enough to render his decision void;

(4) that the Director failed to consider that corruption and incompetency of the administration in Gambia is still a very serious problem as shown by various human rights organization reports which stated testament to the applicant’s assertions;

(5) that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(6) that the Board failed to make sufficient enquiry before finalizing the determination of his claim; and

(7) that the Board failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL-1 Form:

“11. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his case, or how did the Director or the adjudicator fail to rely on the relevant COI in their assessment of the situation in Gambia, or how did the adjudicator fail to conduct sufficient enquiry or to give the Applicant sufficient opportunity to adduce his evidence in support of his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such and given the latest political situation in Gambia as found by both the Director and the Board, I do not find any of them reasonably arguable for his intended challenge.

12. 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his claimed fear of harm from the previous government in view of the dramatic political changes since his departure from his country and the current political situation in Gambia including the fact that UDP has since become the ruling party and with his uncle being appointed as an important minister in the government as evidenced by the latest COI for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 97 of its decision, and in the absence of any error of law 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.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

9.  In the Notice of Appeal dated 24 July 2020 the applicant contended that:

“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

10.  In his skeleton submissions dated 22 January 2021, the applicant submitted that:

(1) it is not safe for him to return to Gambia;

(2) the applicant is not satisfied with the decisions against him as these decisions ignored matters related to his case and were not transparent;

(3) the decision makers wrongly assessed the situation in Gambia.  They did not appreciate how hard it would be for the applicant to live there and face the threats from his enemies;

(4) the applicant needs to stay in Hong Kong until his problems in Gambia are resolved;

(5) the police in Gambia are corrupt and they torture and kill innocent people.  There are many examples related to the applicant’s case on the Internet; and

(6) the applicant cannot file a report to the police for his protection because this would only serve to alert the people threatening him.

11.  The applicant agreed by a letter of 24 July 2020 that the appeal could be heard by two judges.  We heard the appeal on 3 March 2021.  At the hearing, the applicant stated that he now accepted that the political situation in Gambia had changed and that his earlier fears for his safety were no longer a problem.  However, he went on to say that in recent years, he has been receiving help from a friend who is homosexual, and that he has now formed a homosexual relationship with the friend.  He stated that as homosexuality is a taboo in Gambia, he could not return to Gambia as he would not be accepted and would be in danger from a wide section of the population there, and not just political forces or the police.

Discussion

12.  We shall deal first with the matters raised in the applicant’s Notice of Appeal and written submissions, both of which are focused on his original basis of claim for non-refoulement protection.

13.  The ground of appeal stated in the Notice of Appeal is very broad and general, and the applicant has not given any details in relation to these grounds, by indicating what he says are the “facts and reality” of his case, and the respects in which the court below failed to have regard to them.  Nor does he elaborate on his allegation that there was some lack of transparency on the part of the court below.  In these circumstances, having identified no respects in which the judge is said to have erred, the applicant has not advanced any viable grounds for appeal.

14.  As to the matters mentioned in his written submissions, all of these appear to be directed towards the decisions of the Director and the Board, and not to the judgment below.  The arguments mentioned in the written submissions relate to the situation in Gambia, the effectiveness of the police authorities in Gambia and the reason why the applicant considers that it is unsafe for him to return.  None of these complaints identify any error on the part of the court below, rather they simply contend that the Board reached an erroneous conclusion in respect of each of the above issues without identifying any public law error in the Board’s evaluation of those issues.  This court has held on numerous occasions that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The court is not required to come to a view on the above factual issues, as the primary decision maker is the Board.  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.  Further, on appeal to this court, the focus of this court is on the judgment of the Court of First Instance, and not on the decision of the Board.

15.  As we have pointed out, no error on the part of the Court of First Instance has been identified either in the Notice of Appeal or the written submissions.  Although it is not strictly necessary for us to do so, we have nonetheless considered the decision of the Board, but have found no public law error in it.

16.  Further, as noted in paragraph 12 above, the applicant no longer relies on the risks to him arising out of his political affiliation.

17.  As to the matters stated by the applicant at the hearing relating to his homosexuality, this is clearly a matter that has arisen after his arrival in Hong Kong, and apparently after his non-refoulement claim was lodged and dealt with.  It was not a ground relied upon by him in his non-refoulement claim before the Director or on appeal to the Board, and was not referred to in his application for leave to judicially review the Board’s decision.  Nor was it mentioned in his Notice of Appeal or written submission for this hearing, having been raised for the first time in his oral submissions before us.  As the point has never been raised previously, it is not one which can properly be raised on appeal, particularly at this late stage.  Moreover, not having been raised before the Director or the Board, it has not been the subject of any determination by the primary decision makers, and could not have been raised before the court below as a ground for judicial review in respect of their decisions in any event.

18.  In the circumstances, there is no merit in the appeal and we dismiss the appeal accordingly.

19.  That said, where there has been a significant change in the circumstances material to the applicant’s case for non-refoulement which have occurred after his original claim was finally determined, it may be possible for the applicant to make a further, subsequent claim to the Director (who is the primary decision maker) on the basis of written evidence of such change of circumstances, pursuant to section 37ZO of the Immigration Ordinance, Cap. 115.  As the Director is the primary decision maker in respect of whether or not to permit such a subsequent claim, and in respect of the merits of such a subsequent claim if one is permitted to be brought, it would not be appropriate for us to express any view as to the merits or prospects of success of such a claim, and we do not do so.