RE M BARA ABAIDI IBRAHIM

CACV 290/2019

[2019] HKCA 1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2019

(ON APPEAL FROM HCAL NO 61 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 17 June 2019^[1]. By that decision, the judge refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. For the reasons which appear below, the hearing date of this appeal has been vacated and we therefore deal with this appeal on paper.

2.  The applicant is a national of Niger who arrived in Hong Kong as a visitor with permission to stay up to 6 July 2008.  He then overstayed and was arrested by the police on 12 September 2008.  He raised a non‑refoulement claim on the basis that if he were to return to Niger, he would be harmed or killed by members of Mamadou Tandja’s party (“MT Party”) for having allegedly burnt down the properties of one of their members.

The Director’s decision

3.  By a Notice of Decision dated 18 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director assessed that the level of risk of harm is low because of the absence of past ill-treatment and the fact that the applicant had never received any direct threat from members of the MT Party.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. 

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board.  A hearing of the appeal was conducted by the Board on 28 September 2017.  The Board found that the applicant’s claim that he was framed and wanted by the police and the MT Party was not truthful and did not accept he genuinely believes that he will be subjected to harm on this basis.  As the applicant has not made out a case under any of the applicable grounds, his appeal was dismissed by the Board on 25 October 2017.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 11 January 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

7.  Having reviewed the decisions of both the Director and the Board, the judge considered that there is no legal error, procedural unfairness or failure to apply high standards of fairness.  As the applicant has no prospect of success in the intended judicial review, the leave application was refused on 17 June 2019 accordingly.

8.  The applicant filed a Notice of Appeal against the decision of the judge on 27 June 2019.

The grounds of appeal

9.  The applicant was directed by the Registrar of Civil Appeals to file a supplemental notice of appeal as he failed to provide any substantive ground of appeal in his notice of appeal.  In the supplemental notice of appeal filed on 17 July 2019, the applicant stated his grounds of appeal which may be summarized as follows:

(1)  He cannot go back to his country.  His life is in danger because he married a woman who is from a different culture.

(2)  The Boko Haram terrorist organization becomes more active now in his country.  One of his relatives lost his life in the hands of Boko Haram.  The applicant will be exposed to attack in his country.

(3)  The applicant is an asthmatic patient.  The environment and conditions in his country make his living more difficult.

10.  None of these grounds were raised in the original leave application.

Non-compliance of unless order

11.  The appeal was scheduled to be heard on 15 October 2019.  Directions were given by the Registrar of Civil Appeals on 17 July 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

12.  The applicant failed to lodge a skeleton argument by the prescribed time (ie on or before 17 September 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 24 September 2019, the court informed the applicant that the hearing date of 15 October 2019 has been vacated and that his appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

13.  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.

14.  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.  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.

15.  The Court of Appeal will not generally entertain fact‑and‑evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

16.  The applicant relies on various grounds of appeal which were not raised in the original leave application.  As repeatedly stated by the Court of Appeal, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds have failed at the court below^[6]. We will not entertain the applicant’s grounds which have not been raised at the court below and for which leave has not been sought within time by the applicant.

17.  In any event, the grounds of appeal are not viable to reverse the judge’s decision.  There is a lack of particulars, elaboration and evidence in support regarding these new grounds.  He has failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  As can be seen from the reasons given in paragraphs 11 to 14 of the decision, the judge’s determination is well founded. 

18.  As there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review, we hereby dismiss this appeal.