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CACV 196/2021
[2021] HKCA 1174
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 196 OF 2021
(ON APPEAL FROM HCAL NO 1239 OF 2018)
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BETWEEN
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SOPLAPUCO MATUTE MANUEL ANDRES |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITON OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Yuen and Chow JJA in Court
Date of Written Submissions: 20 July 2021
Date of Hearing: 17 August 2021
Date of Judgment: 24 August 2021
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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):
Introduction
1. On 14 April 2021, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 June 2018 and dismissed the leave application. In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 24 April 2013 and 19 July 2017 rejecting the applicant’s non-refoulement claim.
2. On 28 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.
Background
3. The applicant is a Peruvian national. He first arrived in Hong Kong around November 2010 and then variously travelled between Hong Kong, Mainland China, Macau, Malaysia, Thailand and Taiwan. He last entered Hong Kong on 15 November 2011 as a visitor. He overstayed and surrendered himself to the Immigration Department on 23 November 2011. On 24 October 2012, he lodged a claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment with the Immigration Department. His claim was taken as a torture claim under part VIIC of the Immigration Ordinance, Cap. 152 (“the Ordinance”). His claim was made on the basis that if he were returned to his home country, he would be harmed or even killed by local indigenous people and the drugs traffickers behind them in Lima, Peru (“the Local Groups”) as he was accidentally involved in a political conflict between the Local Groups and the Peruvian government. The background of the case was succinctly summarized by the Judge at [4] and [5] of his decision dated 14 April 2021 under HCAL 1239/2018, [2021] HKCFI 937.
4. By a Notice of Decision dated 24 April 2013, the Director refused his torture claim.
5. By a Notice of Further Decision dated 19 July 2017, the Director rejected the applicant’s claim based on BOR 2 risk,[1] BOR 3 risk[2] and persecution risk[3].
6. The applicant appealed the Director’s decisions to the Board. He attended a hearing before the Board on 23 April 2018. By its decision dated 22 June 2018, the Board found multiple significant inconsistencies in the applicant’s evidence and considered him not to be a credible witness. The Board was not satisfied that the applicant would face a real risk of proscribed harm from the Local Groups or other parties if refouled, and rejected his non-refoulement claim on all applicable grounds.
Decision of the court below
7. On 3 July 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision. In his supporting affirmation, he said that he was unable to return to his home country because he was being sought by the Local Groups who threatened his life.
8. The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By his decision dated 14 April 2021, the Judge refused the application for leave to apply for judicial review. The reasons for the refusal were set out at [13] – [18] of the Form CALL-1 as follows:
“13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. … …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.’
15. It is obvious that since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim.
16. His ground in support of this application does not assist this application.
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. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”
Appeal to this Court
9. On 28 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision. In the Notice of Appeal, he advanced the following grounds of appeal:
“1. I am unrepresented and I reserve the right to amend the grounds for judicial review.
2. Failure to consider my [COI].
3. Failure to consider the risk I would face upon return to my home country.”
10. In compliance with the Court’s directions of 22 June 2021, the applicant lodged his written submissions on 20 July 2021. In the written submissions, he said that he could not go back to his home country as his life would be in danger there. His enemies were still looking for him and wanted to kill him. He urged the Hong Kong government to protect him and not to send him back to his home country.
11. At the hearing, the Applicant said that his enemies were still looking for him back at home, and his daughter had made a complaint to the local police authority.
Legal principles
12. In considering this appeal, we apply the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The salient principles are as follows:
(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.
(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.
(3) 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, the appeal should be dismissed. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.
Discussion
13. The applicant has failed in his notice of appeal or submissions to raise any or any proper ground of appeal, or identify any specific errors in the Judge’s decision, or any specific potential grounds for reversing the Judge’s decision. He merely advances some vague and general accusations that the Judge failed to consider the COI and the risk of harm faced by him.
14. It has repeatedly been emphasised by this Court that the role of the court in a judicial review of a decision of the Board is not to provide a further avenue of appeal but to review the Board’s decision in light of the grounds of challenge raised by the applicant, and the court would only intervene on valid public law grounds. Here, the Board rejected the applicant’s evidence and did not accept that he would face any real risk of harm upon his return to Peru. It was perfectly open for the Board to reach its findings and conclusions which, in our view, are reasonable and fully justified.
15. We are satisfied that the Judge reviewed the Board’s decision with anxious scrutiny and vigorous examination, and do not find any error in his decision.
Order
16. For the above reasons, this appeal is dismissed.
| (Maria Yuen) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant, unrepresented, appeared in person
[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] 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).
[3] 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 and its 1967 Protocol.
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