RE DRAMMEH MUHAMMED

CACV 307/2020

[2021] HKCA 668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 307 OF 2020

(ON APPEAL FROM HCAL NO. 1846 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 14 July 2020 in HCAL 1846/2018 refusing leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 August 2018 in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 23 June 2017.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 21 January 2021, the applicant shall lodge with the court two sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays) but he failed to do so.  The Registrar further directed that if the applicant failed to lodge his skeleton argument, he shall be deemed to have waived his right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The applicant is a Gambian national. He came to Hong Kong on 9 May 2014 as a visitor.  He overstayed since 8 August 2014 and he surrendered to the Immigration Department on 22 September 2014.  On 29 September 2014, he lodged a non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or even killed by his brother Modou because his brother blamed him for calling the police to arrest him after he injured some neighbours.  He was also afraid that he would be arrested by the Gambian police as he had injured Modou.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1546. 

4.  By the Notice of Decision dated 23 June 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant lodged an appeal to the Board against the Director’s decision, and there was an oral hearing on 29 June 2018.  By its decision dated 6 August 2018, the Board dismissed the appeal.  For the reasons set out at [51] to [69] of the decision, the applicant was found to be an untruthful witness and that his account of event of the fight with his brother was his mere assertions without any supporting evidence and even if the fight had happened, the applicant confirmed that there were witnesses supporting the applicant’s claim of self-defence and that his brother had mental issue.  In the circumstances, it is unlikely that the applicant would be charged and imprisoned as a result of the alleged incident.  There are strong indications that he came to Hong Kong for economic reasons and not out of fear of his life.  His complaints that he did not speak, write nor understand English were found to be untrue and showed an element of obstruction to the appeal process that did not stand to his credit.  For the aforesaid reasons, the applicant’s claim for non-refoulement protection failed on all applicable grounds.  

6.  On 5 September 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  He did not provide any ground of relief in his Form nor in his supporting affirmation.

The Judge’s decision

7.  The Judge heard the application on 15 November 2019 and by the CALL-1 Form dated 14 July 2020, the Judge refused to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [14] – [17] for his refusal to grant leave:

“14.  The applicant appeared before me and confirmed that he was free to put his case before the immigration officer and the Adjudicator of the Board.

15.  I put the Board’s findings to him. He argued that he disagreed with the Adjudicator that he came to Hong Kong for economic reason.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

The Appeal

8.  On 28 July 2020 , the applicant filed his Notice of Appeal against the Judge’s decision.  He did not provide any ground of appeal save for saying that he wanted to challenge the Judge’s decision of 14 July 2020.  Pursuant to direction of the Registrar of Civil Appeals on 12 October 2020, the applicant shall lodge with the Court a supplemental notice of appeal and set out his grounds of appeal in accordance with paragraphs 20 to 22 of Practice Direction 4.1.

9.  On 28 December 2020, the applicant lodged the supplemental notice of appeal.  Despite he was given a second chance to provide proper grounds of appeal, he only reiterated the factual background of his case and claimed that the police still looked for him as he injured his brother badly and therefore he cannot return to Gambia.  

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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.

(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

11.  The applicant had failed to provide any proper ground of appeal to pinpoint any error of law or raise any discernible ground against the Judge’s decision and his appeal is doomed to fail.

12.  Here, the Board, after its careful analysis and assessment of the applicant’s case, found against him on the issue of credibility and that his alleged fear to be arrested and charged by the Gambian police was ill-founded.   The Board found that the applicant came to Hong Kong for economic reason rather than seeking non-refoulement protection.  The findings and conclusions are within the province of the Board and we found no error of law or procedural unfairness or irregularities in the Board’s decision.

13.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and we find nothing amiss from his decision.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the 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.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] 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.