RE KOUROUMA ABDOULAYE

CACV 319/2020

[2021] HKCA 301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 319 OF 2020

(ON APPEAL FROM HCAL NO. 2419 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 22 July 2020[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 28 September 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 16 October 2018 dismissing his appeal against the Director’s decision.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Guinean aged 42. He last arrived in Hong Kong on 13 October 2011 and was given permission to remain as a visitor for two weeks.  He overstayed and were arrested by the police on 23 August 2014.  On 26 August 2014, he raised a non-refoulement claim based on fear of being harmed or killed by his former business partners who were fanatical Muslims and he is a Christian.  His claim was set out in detail in the Director’s decision at [6] and the Board’s decision at [24] to [28], and summarised by the Judge in [4] to [6] of the Form CALL-1. 

4.  In gist, the applicant claims that, despite he is a Christian, he and his Muslim partners got on well in the beginning.  This, however, changed during a business trip to Nigeria when he was robbed at gunpoint the money that his partners gave him for the business.  His partners blamed him for the loss and accused him of taking the money.  Before he returned home, his father who had tried to mediate for him was killed by the jihadist group with whom his Muslim partners were associated.  His partners started a manhunt looking for him.  Fearing for his safety, he came to Hong Kong via the Mainland.  

5.  By his decision dated 28 September 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

6.  The applicant appealed the Director’s decision to the Board.  The Board heard his appeal at an oral hearing held on 27 July 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 16 October 2018, the Board dismissed the appeal.  In summary, the Board first found that the applicant is a national of Guinea as well as a citizen of Nigeria by reason of his mother’s nationality.  As to the applicant’s claim, the Board was not satisfied that he was a credible witness. The Board did not accept that the claimed events had occurred or that he faces any risk of serious or significant harm for the reasons asserted by him, whether in Guinea or Nigeria.  The Board found no real risk of the applicant experiencing any type of harm or ill-treatment as claimed, and concluded that he failed to make out a case for non-refoulement protection under any of the applicable grounds.   

7.  On 31 October 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He stated the following in his supporting affidavit:

(1)  He would be subject to torture upon his return to his country.

(2)  His father had been killed.

(3)  There is still discrimination against Christians.

8.  The Judge heard the application at an oral hearing.  For reasons set out in [14] to [17] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“14. The applicant appeared before me. He confirmed that he was at liberty to put his case before the Immigration officer and the Adjudicator of the Board. The Director’s Decision was explained to him by his duty lawyer. His friend had explained the Board’s Decision to him.

15. I put the Board’s findings to him and asked him if he had any comments on them. He said that he did not agree with the Board.

16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

9.  By a Notice of Appeal filed on 3 August 2020, the applicant appealed the Judge’s order to this court.  He stated in the Notice of Appeal that: (1) he was a Christian; (2) his business partners who were Muslims want to kill him because they want him to convert into Muslim; and (3) his father was killed by his Muslim partners.  

10.  The applicant had put in a written submission in which he advanced the following arguments:

(1)  His life is under threat in his country.  His enemies are influential and have nationwide network.  They can find him no matter which part of the country he goes.

(2)  His father’s country is different from that of his mother.  His mother’s country is in a civil war and nobody from another country can take shelter there.  Owing to his enemies, he is not safe in his father’s country.  Due to the civil war, his mother’s country is also not safe.  He is at this moment a stateless person. 

(3)  He used to be a big businessman, but now he has lost all his property and have to receive help while in Hong Kong.

11.  We heard the appeal on 8 March 2021.  At the hearing, the applicant stated that since he came to Hong Kong, he had met people from Nigeria who belong to the Indigenous People of Biafra (“IPOB”), which is a separatist organisation advocating the independence of the state of Biafra from Nigeria.  At their invitation, he has joined them and he believes that when independence is achieved, there will be no more problems with the Muslims and he can safely go back. 

12.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  The relevant principles include:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(3)  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 were not raised before the judge.

(4)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

(5)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

13.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  Firstly, evaluation of risk of harm is for the primary decision makers and not for the court.  The Board had rejected the applicant’s case and evidence as being not credible.  The applicant has not advanced any ground to challenge the Board’s findings and decision.  In these circumstances, there is no evidential basis to support his assertion that he would be in danger if he were to return to his country.  

14.  Secondly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

15.  Thirdly, with regard to what the applicant said at the appeal hearing (see [11] above), they are new facts not before the Board or the Judge.  It is not open to the applicant to put up new facts in an appeal. Any recent developments in the applicant’s situation may be relevant to the consideration of the Director who is the primary decision maker, but they are not relevant consideration for the Court.

16.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in the Board’s decision.  There is no ground to interfere with the Board’s findings and decision.  Likewise, there is no basis to disturb the Judge’s decision.  Accordingly, we dismiss the appeal.