NGUYA ADAM IDDI v. TORTURE CLAIMS APPEAL BOARD

CACV 484/2021

[2022] HKCA 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 484 OF 2021

(ON APPEAL FROM HCAL NO 1943 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.  On 22 October 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the decision of the judge on 27 October 2021.

2.  The applicant is a national of Tanzania and is 31 years old. He arrived in Hong Kong on 28 June 2016 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 27 September 2016 and raised a non-refoulement claim on 20 March 2017. His claim was made on the basis that he will be harmed or killed by supporters of the ruling political party Chama Cha Mapinduzi (“CCM”) as he supported the opposition party Chadema Party.

The Director’s decision

3.  By a Notice of Decision dated 27 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the low intensity and frequency of the alleged past ill-treatment, the Director assessed that the level of future risk of harm upon the applicant’s return is low. The Director observed that the applicant learned about the identity of the people who burnt down his shop from hearsay information and the applicant admitted it was only his speculation that the callers of the threatening calls were CCM members. Besides, there has never been any physical harm inflicted upon the applicant by CCM members. Thus, the Director found there is no substantial ground for believing that CCM members would seriously harm or kill the applicant upon his return to Tanzania. The Director also considered there is nothing to show that any of the alleged acts against the applicant had been inflicted by or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity of the state. Moreover, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 23 March 2018. The Board considered the applicant was not a witness of truth because of the numerous inconsistencies, general vagueness and inability to provide any explanation for the differences and the relevant details. The Board further found that the applicant’s multiple exits and entries from and into Tanzania in the past demonstrated that he is of no interest to the authorities or the government of that country. For these reasons, the Board rejected all the applicant’s claims and dismissed the appeal on 7 August 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 14 September 2018 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any grounds for his intended challenge. He did not make further submissions in support of his leave application at the hearing before DHCJ Bruno Chan on 21 September 2021.

The judge’s decision

7.  The judge reviewed both the decisions of the Director and the Board, and decided that the applicant failed to show any error of law, procedural unfairness or any failure to apply high standards of fairness in the decisions. The judge concluded that the applicant’s intended challenge does not have any prospect of success and dismissed the leave application on 22 October 2021.

Grounds of appeal

8.  In the Notice of Appeal, the applicant only stated that he wants to challenge the decision, without giving any particular grounds for the challenge.

9.  In his written submissions, he reiterated the problems he faced in his home country and submitted that the Director and the Board did not correctly consider his claim but did not provide further elaboration or any particulars in this respect. He did not make oral submissions at the hearing of the appeal.

Legal Principles

10.  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.

11.  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.

Analysis and disposition

12.  In the present appeal, the applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in dismissing his leave application. The judge provided detailed reasons for the decision and his decision is well founded.

13.  There being no valid grounds of appeal, we dismiss the appeal accordingly.

[1] [2021] HKCFI 3172

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to 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).

[5] 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.