RE DIOUF NDONGO

CACV 191/2020

[2020] HKCA 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 191 OF 2020

(ON APPEAL FROM HCAL NO 1377 OF 2018)

_________________

_________________

_________________

J U D G M E N T

_________________

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

1)  The appeal

1.1.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.

2)  Background

2.1.The applicant is a national of Senegal and served in the army of Senegal.  He entered into Hong Kong on 23 November 2016 as a visitor but overstayed after 8 December 2016.  He surrendered himself to the immigration authorities on 8 December 2016.  On 27 June 2017 he lodged his non‑refoulement claim on the basis that if he returned to Senegal he would be harmed or killed by the Senegalese army for losing his weapon, an M‑60 rifle, during a combat mission.

2.2.The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL‑1 Form.

3)  The Director’s Decision

3.1.The Director of Immigration decided against the applicant’s claim on 10 January 2018.  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.

4)  The Board’s Decision

4.1.The applicant appealed against the Director’s decision to the Board.  After a hearing held on 15 June 2018, the Board dismissed the applicant’s appeal on 5 July 2018.

4.2.The Board found that the applicant was evasive to many of the questions put to him.  He did not give direct answers.  The Board found that he was not a reliable witness.  The Board found that his evidence was vague and lacking in particulars and that he could not or would not provide relevant details despite being given every opportunity to do so.  The Board found many inconsistencies between what the applicant said during the hearing and what was recorded in documents in the hearing bundle. On the whole while the Board accepted the applicant’s personal and family background as claimed and that he was in the army responsible for the M‑60 rifle, it did not find the applicant to have told the truth, and did not accept the other matters claimed including the loss of the weapon, his desertion from the army and his fear of returning to his country.

5)  Decision of the Judge

5.1.The applicant complained before the Judge a variety of matters (as summarised in [10] of the CALL‑1 Form), including that the Director’s and the Board’s decisions were unfair and unreasonable.  He complained that there was no proper consideration of state acquiescence, that they failed to take into account COI that supported the applicant’s fears but relied on COI that suited the Director’s preconceived conclusion, that the Board failed to make sufficient enquiries before reaching its decision, and failed to give the applicant a sufficient chance to arrange for relevant evidence.

5.2.The Judge held that the applicant’s various complaints were all broad and vague assertions relying on certain key words and phrases but without particulars of how they actually applied in his case, or how the Director failed to rely on relevant COI, or how the Board failed to make sufficient enquiries or to give the applicant a sufficient opportunity to prepare his evidence.  As such, the Judge did not find any of the applicant’s assertions reasonably arguable for the intended judicial review.

6)  Grounds of appeal

6.1.In his Notice of Appeal, the applicant states that he is not satisfied with the Judge’s decision because it departs from the facts and reality of his case and that there is no transparency.

6.2.In the applicant’s written submissions lodged for this appeal, in essence, he again made bare allegations without specifics that the Court’s decision was not transparent and that many things related to his case had been ignored.  He stated that the situation in his country was very different from what the decision‑makers thought.  The police and other authorities were very corrupt and anyone who testified against them would be killed or disappear.  There are many examples available on YouTube of how people were treated in his country.  His well‑wishers in his own country are doing their best to solve his problems.  He wishes to stay in Hong Kong until his problems are solved. 

6.3.At the hearing, the applicant only spoke to stress that what he had said before was true.

7)  Our view

7.1.  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.  While 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 matters 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 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 of an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court or his decision is 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.2.  In our view there are no merits in the applicant’s appeal.  Consideration of the merits of the non‑refoulement application is the task of the Board (on appeal from the Director).  The Board found against the applicant based on a rejection of his factual assertions after an oral hearing.  In his decision, the Judge has provided his reasons for refusing leave to apply for judicial review.  We see no basis for disturbing that decision.  The grounds and submissions put forward for the appeal do not show any appealable error in the Judge’s reasoning.

7.3.  Accordingly the appeal is dismissed.