RE CHARTY LAMIN

CACV 299/2021

[2021] HKCA 1700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2021

(ON APPEAL FROM HCAL 2812/2018)

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge To (“judge”) given on 27 May 2021 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 30 November 2018 (“Board’s 2018 Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 20 April 2017 rejecting the applicant’s non-refoulement claim (“Director’s 2017 Decision”).

Background

2.  The applicant is a national of Gambia.  He last entered Hong Kong on 20 June 2014 as a visitor and was permitted to remain until 18 September 2014.  He overstayed and surrendered to the Immigration Department on 29 September 2014.  He lodged a non-refoulement claim on 23 October 2014. 

3.  The applicant’s claim was based on threats of death and ill-treatment from his half-brother and his step-mother’s family arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [9] and [10] of the judge’s decision[1].

4.  By a Notice of Decision dated 23 December 2015 (“Director’s 2015 Decision”), the Director decided against the applicant’s claim.  The Director’s 2015 Decision covered the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant intended to appeal against the Director’s 2015 Decision to the Board, but filed his Notice of Appeal/Petition out of time[5]. On 6 February 2017, the Board refused the applicant’s application for late filing of the Notice of Appeal/Petition (“Board’s 2017 Decision”).  The applicant did not pursue his application further by judicial review, rendering the Board’s 2017 Decision (as well as the Director’s 2015 Decision) final.

6.  In due course, a further ground for non-refoulement protection became available to the applicant under the Unified Screening Mechanism, namely the BOR 2 risk^[6]. Having invited the applicant to submit additional facts which he considered to be relevant to his non-refoulement claim, and having had regard to these additional facts[7], the Director by way of his 2017 Decision determined that the applicant had failed to establish a personal and real risk of his BOR 2 rights being violated upon his return to Gambia.

7.  The applicant appealed against the Director’s 2017 Decision to the Board.  After determining the appeal without a hearing, it was dismissed by the Board by way of its 2018 Decision.  At [13] of the Board’s 2018 Decision, the Board concluded that the applicant had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of his BOR 2 rights.

The judge’s decision

8.  The applicant filed a Form 86 on 10 December 2018 which contained no ground for seeking relief.  The decision in respect of which relief was sought was the Board’s 2018 Decision.

9.  In his affirmation in support of the leave application filed on 10 December 2018, the applicant deposed that:

“I am not satisfied with the decision given by appeal board. I have problem in my own country. Please help me to stay in Hong Kong so that I can save my life.”

10.  After summarizing the facts and background of the case and giving due consideration to all decisions of the Director and the Board as well as the applicant’s written submissions dated 23 March 2021, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [19] to [23] of the judge’s decision:

“19. As can be gleaned from these documents, the Applicant’s grounds for judicial review are that he disagreed with the finding of the Board and that his life will be in danger upon his return to The Gambia. In essence, he is seeking to challenge the finding of facts by the Board and a reassessment of his claims. But he advanced no new evidence or information. All the evidence he had in support of his claims under all the four applicable grounds, including BOR 2 ground, had been presented before the Director when the Director made his decision in the [Director’s 2015 Decision] against which there was no successful appeal to the Board. The decision in the [Director’s 2015 Decision] is therefore final. It was decided in the [Director’s 2015 Decision] that the Applicant’s future risk of harm upon his return to The Gambia is low; that the ill-treatment he received did not attain a minimum level of severity; and state protection and internal relocation are available to prevent or avoid the risk. These finding of facts are binding on the Applicant. Hence in the [Director’s 2017 Decision], the Director found that the Applicant having adduced no new evidence in support of his BOR 2 claim, his claim failed on these facts for the same reasons; and for the same reason, in the [Board’s 2018 Decision] dismissed the Applicant’s appeal and confirmed the Director’s decision in the [Director’s 2017 Decision].

Disposition

20. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinise the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

21. Having rigorously examined the [Board’s 2018 Decision], the papers and the evidence with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. The finding of facts by the Director in its [2015 Decision] is now final. On those findings of facts, they must necessarily follow that the Director’s decision in his [2017 Decision] and the [Board’s 2018 Decision] are correct and the Applicant is unable to prove his claims to protection under any of the four applicable grounds under the USM, including BOR 2 Risk ground. There was no error of law in the [Board’s 2018 Decision]. Neither was the decision unreasonable or irrational.

22. The Director had invited the Applicant’s attention to the new applicable ground under BOR 2 and given him a further opportunity to submit relevant facts. The Director took into account his submissions before making his decision in the [2017 Decision]. There was no procedural unfairness in the proceedings. The Director and the Board adhered to a high standard of fairness. The Board’s [2018] Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable.

23. The [Board’s 2018 Decision] is utterly without fault.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, his application for judicial review is refused.”

Grounds for appeal

11.  In the Notice of Appeal filed on 9 June 2021, the applicant stated that (sic):

“I am not satisfied with the decision because its away 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.”

12.  In the Supplemental Notice of Appeal dated 11 August 2021, the applicant did nothing more than repeat his concerns and danger regarding a return to Gambia, as well as stating his dissatisfaction with the Board’s 2018 Decision because the Board “ignored so many things which are related with [his] case”.

13.  In his written submissions dated 23 September 2021, the applicant submitted that the “High Court” failed to show any cause for dismissal of his leave application.

14.  We heard the appeal on 1 November 2021, with the applicant appearing at the hearing in person.  After repeating the matters already stated in the Notice of Appeal and the Supplemental Notice of Appeal, he added, by way of oral submissions and further written submissions, that he had been suffering from panic attacks, heart palpitations, anxiety and depression since 2017 (“Medical Conditions”), for which he had been referred to West Kowloon Psychiatric Centre and prescribed medication.

Discussion

15.  The grounds of appeal set out in the Notice of Appeal referred to “the decision” and “these decision[s]”. It is unclear towards whom and against which decision(s) the complaints of error are being made.

16.  If these complaints of error refer to those on the part of the Board (as were those stated in the Supplemental Notice of Appeal), the applicant has failed to identify any error on the part of the judge and this is therefore not a 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 errors on the part of the judge that would justify this court in intervening.

17.  Even if we accept that the grounds in the Notice of Appeal were directed towards the judge’s decision (as contended by the applicant’s written submissions), 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 would not be 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 all decisions of both the Director and the Board and found no basis for intervening.  In our view, he was correct to do so.

18.  In any event, the grounds advanced by the applicant are vague and lack particulars.  These grounds should also be dismissed for this reason.

19.  Finally, at the hearing before this court, the applicant submitted that he suffered from the Medical Conditions, although he did not state in what way they are relevant to his claim of non-refoulement.  The Medical Conditions were not drawn to the attention of the court below (whether by way of the applicant’s oral submissions or in his written submissions dated 23 March 2021), nor were they raised as an issue for consideration by the Board or the Director in reaching their respective 2018 and 2017 Decisions[8]. The Court of Appeal will not entertain any new arguments that are fact sensitive that should have been raised in the court below.  Further, no substantive evidence in support of the Medical Conditions has been produced by the applicant.  In any event, the Medical Conditions as contended by the applicant materialised in or around 2017, which was long after the lodgement of his non-refoulement claim on 23 October 2014.  Thus the Medical Conditions, even if substantiated, cannot provide any valid ground of appeal in favour of the applicant.

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