RE TUSIIME GODFREY

CACV 274/2020

[2021] HKCA 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2020

(ON APPEAL FROM HCAL 1769 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 7 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1364.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 July 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 January 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 22 July 2020. Pursuant to Order 53, rule 4 of the Rules of the High Court (Cap 4A), the applicant had 14 days to lodge the appeal, which deadline expired on 21 July 2020.  However, the last day for the applicant to file his appeal in fact fell within the General Adjourned Period for court proceedings according to the announcement by the Judiciary on 19 July 2020 due to the Covid-19 pandemic.  The applicant had filed his appeal on the first day when the court re-opened on 22 July 2020.  There is therefore no delay in filing the Notice of Appeal. By a letter dated 22 July 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

4.  The applicant is a national of Uganda.  He entered Hong Kong on 30 July 2011 as a visitor but overstayed afterwards.  He surrendered to the police on 5 September 2011.  He lodged a torture claim which was later refused.  On 10 July 2014, he was deported back to Uganda.  On 19 November 2015, he sought to enter Hong Kong again via Dubai but was refused entry and sent back to Dubai.  Again on 2 December 2015, he entered Hong Kong illegally and surrendered himself to the immigration department on 10 December 2015.  On 11 December 2015, he lodged a non-refoulement claim.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 8 of the Director’s Decision, and paragraphs 24 - 38 of the Board’s Decision.

6.  The applicant claimed that he would be harmed or killed by Ruhuma Adolf (“RA”), a wealthy retired army officer, due to a land dispute if refouled.  The applicant claimed to own a piece of land in his home village which was held on trust by his mother.  In March 2011, RA wanted to acquire the applicant’s land but he refused.  In May 2011, RA removed the vegetation in the applicant’s land and fenced it.  The applicant was unable to get assistance from the police whom he believed were bribed by RA and, with the help of two villagers, he removed the fence.  A few days later, his mother was attacked by three of RA’s workers and inquired for the applicant’s whereabouts.  Out of fear, he came to Hong Kong in July 2011.  When he was deported back to Uganda after the unsuccessful torture claim, he was able to reoccupy the land while RA was not in Uganda. Yet, he was later harassed by RA via the telephone.  To avoid RA and being fearful for his life, the applicant eventually fled to Hong Kong again for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 28 June 2018, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board reminded itself of the applicable legal principles before reaching the conclusion that the applicant was not a credible witness.  It found that the applicant’s evidence was vague, inconsistent and constantly changed over time on the fundamental aspects of his claim (paragraphs 39 - 55 of the Board’s Decision).  On this basis alone, the Board dismissed his appeal.

C.  The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 28 August 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review in either his Form 86 or the supporting affirmation but only attached the hearing bundles before the Board and the Board’s Decision as exhibits.  After hearing the applicant on 3 December 2019 and considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at paragraphs 14 - 17 of the Deputy Judge’s Decision.  He noted that the applicant confirmed at the hearing that he was treated fairly before the Board and had no further evidence against the Board’s Decision, as well as that there was no ground of review.  In the premises, the Deputy Judge held that the applicant was unable to show any reasonable prospect of success for his intended judicial review.

D.  Grounds for appeal

11.  The applicant’s grounds of appeal in his Notice of Appeal were that:

“1.  Failure to consider the country of origin conditions (COI) materials in my country.

2.  Failure to consider my claim under following grounds BOR2 and BOR3 risk.

3.  Failure to consider my fear properly.” [sic]

12.  Pursuant to Master Tsui’s directions dated 3 November 2020, the applicant filed his skeleton submissions on 2 December 2020.  In that, he repeated that (a) the Board and the Director failed to make sufficient inquiries into the country of origin information which resulted in a failure to adhere to a high standard of fairness; and (b) the Board and the Director failed to take into account his fear and the fact that he suffered severe mental distress.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

13.  At the hearing, the applicant confirmed that he had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we are of the view that this appeal has no merit.

20.  First, the grounds and arguments advanced by the applicant in the Notice of Appeal and the written submissions are all directed at the Director’s and Board’s Decisions.  They do not show in any respect any error in the Deputy Judge’s Decision.  They are therefore not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

21.  Further and in any event, all those grounds now made against the Board and the Director were not advanced before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

22.  In any event, we have reviewed both the Board’s Decision and the Deputy 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 reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

23.  For all these reasons, we dismiss the appeal.