GOMEZ JOSEPH LAWRENCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 232/2024, [2024] HKCA 1045

On appeal from [2024] HKCFI 1178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 232 OF 2024

(ON APPEAL FROM HCAL NO 1485 OF 2019)

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J U D G M E N T

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

1.  On 28 May 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 11 June 2024.

2.  The applicant is a Gambian national. He last arrived in Hong Kong on 15 November 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 25 November 2014 and lodged his non-refoulement claim on 2 January 2015. His claim was made on the basis that, if he returns to Gambia, he will be harmed or killed by his brother, the locals of his neighbourhood community in Serekunda Town and the people in Gambia due to his homosexuality.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 11 May 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the frequency of past ill-treatment, the mode of attack and the applicant’s injuries, the Director considered that the ill-treatment inflicted upon the applicant by his enemies has not attained the requisite minimum level of severity. The Director found that the death threats remained verbal and the applicant’s enemies only intended to express their opinion on homosexuality rather than to kill him. As the applicant had never been accused, charged, interrogated, arrested, detained or imprisoned in his home country, and did not encounter any problem when he departed Gambia, the Director considered that the Gambian government does not have any adverse interest in him. In addition, the Director assessed that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk.

5.  The applicant filed an appeal against the Director’s decision on 23 May 2018 and appeared at the hearing of his appeal before the Board on 8 August 2018. The Board was not satisfied that the applicant has told the truth regarding critical aspects of his claims, in light of the number of differences between his oral evidence and the information provided in his non-refoulement claim form and his failure to provide satisfactory explanation. The Board did not accept that the applicant left Gambia for the reason he has claimed and considered that the applicant would not be at risk of any harm if he returns to Gambia. Thus, the Board rejected the appeal on 16 April 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 31 May 2019 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any specific grounds for his intended challenge.

The judge’s decision

7.  The hearing of the leave application was conducted before DHCJ K W Lung on 8 April 2024. The judge found the applicant has no valid ground to challenge the Board’s decision and there is no reason that the court should interfere with the Board’s findings. As the applicant failed to show any realistic prospect of success in his proposed judicial review, the judge refused the leave application on 28 May 2024.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in his Notice of Appeal filed on 11 June 2024:

(1)  The applicant will face hardship if he returns to his home country;

(2)  The Board made groundless speculations by relying on sources of news that were not officially recognised or are simply hearsay and cases that were outdated.

Non-compliance with order for lodging of skeleton argument

9.  Directions were given by the Registrar of Civil Appeals on 28 August 2024 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

10.  The appeal was scheduled to be heard on 23 October 2024. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 25 September 2024. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By letter dated 10 October 2024, the court informed the applicant the hearing date has been vacated and the Court of Appeal will deal with this appeal on paper.

Legal principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  The applicant’s grounds of appeal are just bare assertions without particulars or evidence in support. In particular, he failed to identify any groundless speculations made by the Board or sources of news or cases that were inappropriately relied on by the Board. He also failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss this appeal.