RE SECLEN BRICENO FELIX BRAYAR

CACV 365/2020

[2021] HKCA 409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 365 OF 2020

(ON APPEAL FROM HCAL 1736/2018)

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J U D G M E N T

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

Introduction

1.  On 31 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 17 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 October 2017 rejecting the applicant’s non-refoulement claim.

2.  On 13 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Peruvian national.  He arrived in Hong Kong on 6 June 2010 and was permitted to remain as a visitor until 6 July 2010.  On 19 June 2010 he was arrested for breach of condition of stay by establishing a business.  The applicant lodged a non-refoulement claim on 21 June 2010. 

4.  The applicant’s claim was based on the fear that, if he returned to Peru, he would be harmed or even killed by the family of Rojas Perez Balerio because they suspected that the applicant’s father was related to Rojas’ disappearance and the applicant’s father had also left the Túpac Amaru Revolutionary Movement (“MRTA”). The factual background was succinctly summarized by the Board at [33] to [42] of the Board’s Decision.

5.  By notice of decision dated 31 October 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 25 April 2018, during which the applicant was interviewed by the Board.  The Board accepted that the applicant’s account of the threats and attacks against him by unknown assailants might be true; however, there was nothing to establish that the assailants were connected to either the Rojas family or MRTA. 

7.  Based on those facts, the Board concluded that there was no real risk of harm from either the Rojas family or MRTA in the event of refoulement.  In any event, the Board also considered that internal relocation was viable.  Thus on 17 August 2018 the Board dismissed the applicant’s appeal.

Decision of the court below

8.  On 23 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. No ground for review had been set out. In his affidavit of the same date filed in support, he deposed that his life would still be in danger if he were to return to Peru, and that the situation all over Peru was really critical, with abductions, murders and corruption throughout the country.

9.  Upon consideration of the documents only, on 31 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 ([2020] HKCFI 1755).

Appeal to this Court

10.  On 13 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal were that it was procedurally unfair that there was no court hearing, material evidence was not reviewed, and his situation has worsened and new material evidence can be provided and better explained at a hearing.

11.  The applicant lodged his written submissions on appeal on 22 February 2021.  In those submissions, the applicant argued:

(1)  the Decision does not correctly analyze the country context in Peru, inadequately considers evidence that the applicant is in danger, and makes a flawed presumption that state protection is available;

(2)  Past harm is an indicator of future risk – surviving a brutal attack does not lessen the severity or level of risk;

(3)  the Director asserted the police were willing to assist the applicant, though they took no action after making a report of his complaint;

(4)  the court adopted an unreasonable evidential threshold by expecting further evidence in support of the applicant’s claim; and

(5)  he cannot relocate within Peru if refouled, due to COVID-19.

Legal principles

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  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 not raised before the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  And

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.  It should be noted that Grounds (1) to (3) in his submissions were not raised as grounds for seeking judicial review. In any event, they lack the necessary particulars.

14.  As for Ground (4) and the general statement in the Notice of Appeal, the applicant did not in his Notice of Appeal or submissions provide any particulars as to how the Judge erred as alleged or any other specific potential grounds for reversing the Judge’s decision. 

15.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.  In the present case, the Board accepted that the applicant’s factual account may be true. However, as there was nothing to establish that the threats and assaults against the applicant were connected to either the Rojas family or MRTA, the Board concluded that there was no real risk of harm from the Rojas family or MRTA in the event of refoulement.  The Board also considered that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

17.  The applicant has not put forward any valid public law ground.

18.  Ground (5) in the submissions is not a ground for his non-refoulement claim put before the Board and cannot be a ground for seeking judicial review against the Board’s Decision. In any event, it cannot be a valid ground.

19.  Having considered the materials before us, we are of the view the Judge was correct in refusing leave. There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, this appeal is dismissed.