RE COLLEY EBRIMA A.

CACV 133/2022

[2022] HKCA 1156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 133 OF 2022

(ON APPEAL FROM HCAL 573 OF 2019)

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J U D G M E N T

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Hon B Chu J (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J (“the Judge”) set out in the Form CALL-1 dated 7 April 2022, by which the Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 1010).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 February 2019 (“the Board’s Decision”), and the decision of the Director of Immigration (“the Director”) dated 22 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Gambia.  He arrived in Hong Kong on 20 August 2014 and was permitted to remain as a visitor until 18 November 2014. He did not depart and overstayed since 19 November 2014. On 19 November 2014, he surrendered to the Immigration Department. He first made a non-refoulement claim by way of a representation on 2 January 2015 that he would be killed by the Gambian Government because of political problem.  He later lodged a formal claim  on 24 July 2017 on the basis that (i) he had to flee Gambia at end of July 2014  to avoid threats /arrest by the then Gambian Government led by the Alliance for Patriotic Reorientation and Construction (“APRC”) as one of his co-workers had written  an article criticizing the government (“1^st Claim”); and (ii) if returned to Gambia, he, being from the same tribe Jola as the former ARPC president, and having supported and written articles for APRC in the past, would be targeted by the present Gambian Government led by the rival political party United Democratic Party (“UDP”) which came into power in early 2017 (“2^nd Claim”). Factual details of the applicant’s claim were summarised by the Judge at [4] of the Leave Decision.

4.  By a Notice of Decision dated 22 September 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

5.  The applicant then lodged an appeal to the Board. On 29 November 2018, an oral hearing was held before the Board and the applicant gave evidence. On 14 February 2019, the Board dismissed his appeal.  Having considered the materials before it, the Board considered that there were serious doubts as to the credibility of the 1^st Claim as his evidence was contradictory and unconvincing.  As to the 2^nd Claim, the Board found that his claim was not supported by the Country of Origin Information (“COI”).  Having assessed the evidence, the Board found that the applicant failed to establish that there were substantial grounds that he would face a real risk of ill-treatment as claimed if he returned to Gambia.  Accordingly, the Board dismissed his appeal and affirmed the Director’s Decision. 

The Leave Decision

6.  On 28 February 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  No ground of review was provided in his Form 86 or supporting affirmation.  As he did not request an oral hearing, the Judge considered his application on paper. 

7.  By the Leave Decision, the Judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out at [11] and [12] of the Leave Decision:

“11. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers carefully. I have not found any error of law or procedure by the Adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. The applicant was unable to provide any evidentiary support on an issue capable of production without difficulty. There is no criticism of the Adjudicator’s determination, which was open to him on the facts and eminently reasonable[5].

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

8.  On 13 April 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he only stated he wanted to challenge the decision, without giving any ground in support. 

9.  Pursuant to the directions given by the Registrar of Civil Appeals on 29 April 2022, the applicant filed two written submissions respectively on 10 May 2022 and 20 May 2022.  In his submissions dated 10 May 2022, the applicant repeated the factual allegations of his non-refoulement claim and alleged that he would be killed by the Gambian Government.  In his submissions dated 20 May 2022, he complained that the Board only gave his personal opinion and failed to provide him with legal assistance.  He also claimed that he wanted to submit important documents but the adjudicator did not give him time to do so.  He further complained that the Board acted as his opponent during the oral hearing and did not allow him to present his personal problem.  He then stated that the Board had committed many errors without specifying what those errors were. 

10.  We first heard the appeal on 6 July 2022.  The applicant had requested for a Jola interpreter.  As the Court does not have a Jola interpreter on its list, prior to the hearing on 6 July 2022, an advertisement had been placed on the Judiciary website for a Jola interpreter but had produced no result.  The Embassy of Gambia in Beijing had also been contacted for assistance but there had been no response. The applicant was asked by the Court at the hearing whether he knew of anyone who could interpret for him but he said he was not sure. Although we could communicate effectively with the applicant and understand him, upon the applicant’s insistence, we agreed to adjourn the appeal to make a further attempt to find a Jola interpreter. We had made it clear to the applicant that the Court would proceed with his appeal at the resumed hearing on 1 August 2022 with or without a Jola interpreter.

11.  After the hearing on 6 July 2022, a further advertisement was placed on the Judiciary website for a Jola interpreter but this again produced no result. 

12.  We note that prior to the present appeal, the applicant had used English in the proceedings before the Director and the Board. The applicant did not indicate that he would require the assistance of an interpreter in confirming the information stated in his Non-refoulement Claim Form of 24 July 2017. During his interview by the Director on 14 August 2017, the applicant indicated that he understood the English language. In his form for appeal/petition to the Board, he stated that the language spoken by him was English, and the oral hearing before the Board on 29 November 2018 was conducted in English.  All the documents lodged by the applicant, including the papers in this appeal, were in English and the applicant understood the contents thereof. In the circumstances, we are satisfied that it is appropriate and no unfairness will be occasioned by conducting the appeal in English. We had therefore proceeded with hearing the appeal on 1 August 2022.

13.  During the hearing, the applicant repeated his submissions that the Jola tribe has continued to be targeted by the present Gambian Government as the President is afraid of the former president who is from the Jola tribe and his influence. He claimed that the conflict in his country is still continuing and during a recent fighting many people were injured. He also claimed that people of his tribe were tortured and persecuted, and he has great fear of being arrested/harmed if returned. 

Discussion

14.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  At the outset, nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  All the allegations made in his written submissions are general and vague in nature and only directed at the Board.  They do not constitute proper grounds of appeal.    

17.  Further, the matters raised in his written submissions are also new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].

18.  The applicant already had ample opportunities to present materials and his case before the Board. He also gave evidence during the oral hearing before the Board. There is no basis in his complaints that the Board did not allow him to present his personal case. Equally, there is no basis in his complaint that the Board did not give him time to submit important documents, when he did not give any particulars and failed to show what those important documents were. 

19.  As to his complaint about lack of legal assistance, it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13]. There is no substance in his complaint. 

20.  In any event, it is well-established that the assessment of evidence, COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The bulk of the applicant’s oral submissions had been raised in the appeal before the Board. For the detailed analysis and reasons given in its decision, the Board found the applicant’s claims to be incredible. We do not discern any proper basis to interfere with the Board’s findings and decision. Accordingly, we see no basis to interfere with the Leave Decision.

21.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.