RE CHOI MATARR

CACV 309/2022

[2022] HKCA 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2022

(ON APPEAL FROM HCAL NO 2277 OF 2018)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 2 August 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2357).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 27 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 12 February 2016 and 21 June 2017 (collectively referred as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 24 November 2022.^[1]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Gambia.  He last entered Hong Kong on 25 January 2013 as a visitor and was permitted to stay until 25 April 2013.  He did not depart and overstayed since 26 April 2013.  On 7 May 2013, he surrendered to the Immigration Department.  On 13 August 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by the Gambian government or its agent, the Junglers, as he was alleged to have leaked information to a reporter in relation to his maternal uncle, Alpha Bah, who had been working as a bodyguard to the previous president of Gambia and took part in a coup against that government.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 12 February 2016 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.  By a Notice of Further Decision dated 21 June 2017 (“the Director’s 2^nd Decision”), the Director further rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[5].

6.  The applicant then appealed against the Director’s Decisions to the Board.  The applicant attended the hearing before the Board on 22 August 2018.  The Board noted that while the appellant claimed at the hearing and in both his Non-refoulement Claim Form and his Notice of Appeal that he was proficient in English, the applicant was also assisted by an interpreter in the Wolof language.  Having assessed the evidence, the Board found that the applicant was not a witness of truth and that his assertion to be Alpha’s relative was unsupported by any evidence.  The Board also found that his evidence on the alleged abductions by the Junglers was inherently inconsistent and that the Country of Origin Information (“COI”) showed that there was a change of government and that the risk of harm from the Junglers was far-fetched.  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 27 September 2018. 

The Leave Decision

7.  On 19 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86, the applicant did not state any ground of review.  In his supporting affirmation, the applicant asserted that he disagreed with the Board’s Decision and that the inconsistencies raised by the Board was because he was traumatised and could not remember the facts well.  He claimed that he had close relationship with his uncle and the family.  He further contended that even though there was a change in the government, that did not make the country safe and he would be killed upon his return.  As the applicant did not request for an oral hearing, the Deputy Judge determined his application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [16] ‑ [22] of the Leave Decision:

“16. 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).

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

18. 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.’

19. Those grounds in paragraph 15 above are not valid reasons to challenge the Board’s Decision. The Board is the fact finding authority of the case. The Board had taken into account the fact that the accuracy of the facts as related by the applicant was affected by the lapse of time and that he was frightened. See paragraph 36 of the Board’s Decision. The Board is entitled to come to its decision as to the facts of the case. There is no evidence from the applicant to challenge its finding of the facts.

20. 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.

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

CONCLUSION

22. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 8 August 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged his written submissions on 13 September 2022.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Leave Decision.

11.  We heard the appeal on 24 November 2022.  We noted that in his Application to Fix a Date for the Hearing of an Appeal, the applicant requested a Wolof interpreter.  As the court does not have a Wolof interpreter on its list, prior to the hearing, The Gambia Embassy in Beijing, Embassy of Mauritania in Beijing, the Consulate of Senegal in Hong Kong, as well as local tertiary institutions and the University of Gambia had been contacted for assistance but these attempts produced no positive result as to a suitable interpreter.

12.  This court noted that in his Non-refoulement Claim Form, the applicant stated English as his first language and Wolof as his other spoken language and did not request for any interpreter assistance.  The proceedings before the Director were thus conducted in English without any interpretation services.  Similarly, in the Notice of Appeal before the Board, the applicant stated that he was proficient in English, although a Wolof interpreter was also present during the hearing before the Board to provide language assistance.  We also noted that all the documents submitted by the applicant in the court below and in the present appeal were written in English and the applicant understood the contents thereof.

13.  In the circumstances, we are satisfied that it is appropriate and no unfairness was occasioned by conducting the appeal in English.  On that basis, we proceeded with the hearing of the applicant in English.

14.  During the hearing, the applicant confirmed that he fully understood what was said to him by this court and had nothing to add to his written materials.

Discussion

15.  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].

16.  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.

17.  In our view, the applicant’s appeal plainly lacks merit and must fail.  His complaints predominately focused on the Board’s Decision and he failed to identify with specific particulars any error in the Leave Decision.  The matters raised in his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  Accordingly, they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  On this basis alone, his appeal must fail.

18.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI 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].  As correctly noted by the Deputy Judge, the applicant has failed to point to any error of law, irrationality or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

19.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.