MBONYANA SIYANDA VICTOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 348/2023, [2024] HKCA 483

On Appeal From [2023] HKCFI 2622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 348 OF 2023

(ON APPEAL FROM HCAL NO 1203 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 31 October 2023[1] refusing 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 (“Board”)  dated 9 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 23 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of South Africa born in 1983.  He entered Mainland China to work as an English foreign language teacher between the period of 2014 to 2017 and he travelled on short trips to, inter alia, Hong Kong, South Korea, Malaysia and Macau.  He claimed that he came to Hong Kong in order to renew his passport and working visa for the extension of his contract of employment in July 2017. The applicant last entered Hong Kong from Macau on 28 July 2017 as a visitor and was permitted to stay until 4 August 2017.  He overstayed and was arrested by the police on 15 September 2017.  On 17 September 2017, the applicant lodged his non-refoulement claim.  The applicant’s claim was made on the basis that if he returned to South Africa, his uncle Amos Mbonyana would harm or kill him due to a land dispute.  The factual background of the applicant’s claim was set out at [8] to [32] of the Board’s decision.

3.  By notice of decision dated 23 May 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 8 January 2019, during which the applicant gave evidence and answered questions from the Board. The reasoning of the Board was succinctly summarized at [9] of the Form CALL-1 as follows:

“ 9. The Board scrutinized the applicant’s claim. The Board first noticed that it was only a bare assertion that the applicant’s late father owned the subject land [25]. It was in fact registered or at least acknowledged to be Amos’s [27]. Unless the applicant showed a better title over the subject land, it was likely that he was causing a nuisance by pursuing his claim over the land [35]-[37]. The Board further rejected the applicant’s claimed better evidence of the title [38]-[41] and the claimed political feud as it was only a red herring [42]. His immigration records showed that a non-refoulement claim was a last resort when all his freedom of movement had exhausted [43]-[46]. Meanwhile, at the time when he went back in 2016, he was not harmed by Amos or the unknown people [52].”

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to South Africa.  It found there was in fact no real risk of harm, because the Board found that his claims of fear of his uncle would only arise on account of his effort of challenging the entitlement of his uncle and that he would not be a person of interest to his uncle requiring the use of alleged black magic or violence to harm him.  In addition, the Board found that the applicant’s claim for non-refoulement protection was only a last resort when he was arrested and facing repatriation to South Africa.   In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to South Africa.  By its written decision dated 9 April 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.  

The Judge’s decisions in the court below

6.  On 6 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 31 October 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …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.’

16. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

8.  On 6 November 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that the decision of the Judge was not correct, that he did not get justice, that the decision of the Board contained many errors, and that he wishes to get justice in this Court. 

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant has lodged written submission on 20 November 2023 in which he repeated his claim for non-refoulement protection and the procedural history of his case. He also stated the Board made many errors, but he did not specify what the alleged errors were.  The applicant further stated that the Judge did not consider his points and that the Judge’s decision was wrong as the Judge did not find the Board’s error found by him, without giving any particulars or details.

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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 the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant would not experience violence or threat of violence should he not challenge his uncle’s legal ownership of the disputed land and he thus should not be a person of interest to his uncle.  The Board also found that his claim for non-refoulement protection was not genuine and only a last resort when he was arrested and facing repatriation.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the applicant’s submissions, it consists of mere general and bald assertions regarding the decision of the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

13.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.  

14.  The applicant’s appeal is accordingly dismissed.