RE OBY AGUIN

CACV 134/2021

[2021] HKCA 1401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 134 OF 2021

(ON APPEAL FROM HCAL NO. 930 OF 2018)

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J U D G M E N T

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

I. The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 19 March 2021.

II. Background

2.  The applicant is a national of Indonesia. He arrived in Hong Kong as a visitor but overstayed after his permission to stay expired. He then raised a non-refoulement claim in June 2016 on the basis that if he returned to Indonesia he would be harmed or killed by a loan shark by the name of Siregar.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[6] of the CALL-1 Form.

III. The Director’s Decision

4.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 20 July 2017. The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV. The Board’s Decision

5.  The applicant appealed against the Director’s Decision to the Board on 2 August 2017. After a hearing held on 22 February 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 14 May 2018.

6.  The Board found that the applicant was a poor witness and not credible. The level of detail provided was scant. Responses were vague and reactive. He claimed that he did not understand English but the Board tested the applicant and found that he was competent in written and spoken English. He provided different versions as to whether he did, in fact, report the matter to the local police. The Board was not persuaded that the material events as alleged are factually correct. In any event, the Board found that the risk of harm is localized and internal relocation is available to the applicant.

V. Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation. In his supporting affirmation, he stated that the Board disregarded his dangerous situation.

8.  The Deputy Judge on 19 March 2021 held that the applicant did not provide details supporting how the Board disregarded his dangerous situation. In the absence of procedural unfairness, or any error of law, there was no reasonably arguable basis for his intended challenge.

VI. Grounds of appeal

9.  The applicant in his notice of appeal stated the following :

‘ I would like to reject and review the decision made by Torture Claim Appeal Board on my non-refoulement case. They disregard my dangerous situation’

10.  This ground is without specifics or elaboration.

11.  In the applicant’s written submissions, he stated that his dangers were obvious. He stated that he was threatened by ‘villagers’. He stated that Indonesia was corrupt. He stated that the Board was culturally insensitive, and it failed to account for his psychological and emotional well-being.

VII. Our view

12.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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. In the determination for 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.

3) In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided proper reasons for refusing the application.

14.  we see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.