ABDI NEGARA v. TORTURE CLAIMS APPEAL BOARD

CACV 520/2020

[2021] HKCA 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 520 OF 2020

(ON APPEAL FROM HCAL NO 2174 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 14 September 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 October 2018.  In that decision, the Board rejected the applicant’s non-refoulement claim which had been refused previously by the Director of Immigration (“the Director”) on 10 May 2018.

2.  On 28 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indonesian national.  He entered Hong Kong on 31 March 2015 and was initially permitted to stay as a visitor until 30 April 2015; his limit of stay was subsequently extended to 2 May 2015.  He did not depart and has overstayed since 3 May 2015.  On 21 May 2015, the applicant was arrested by police for overstaying and was referred to the Immigration Department on 22 May 2015.  The applicant lodged his non-refoulement claim on 29 May 2015.

4.  The applicant’s claim was based on his allegation of fear that, if he returned to Indonesia, he would be harmed or even killed by members of ISIS for having quit ISIS in 2014 after participating in bombing activities for it the year before. The factual background was set out at paragraphs 1 – 3 of the Judge’s decision.

5.  By notice of decision dated 10 May 2018, the Director refused the applicant’s non-refoulement claim on the grounds of BOR 3 risk^[1], persecution risk^[2], torture risk^[3] and BOR 2 risk^[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 23 August 2018, during which the applicant gave oral testimony.  He claimed he joined ISIS in 2012 simply because it was a Muslim group, without finding out what activities he would become involved in, and he only realized later that the mission of ISIS was to kill non-Muslim people.  The Board found that was incredible.  The applicant was already 27 years old when he allegedly joined ISIS in 2012 and, as he himself admitted, he knew that ISIS was notorious for terrorist acts and mass killings.  The Board also found that his description of how his entry into ISIS was simply by way of being accepted by his friend to be unbelievably simple and informal, in light of country of origin information as to how ISIS had tightened up its entry requirements to avoid infiltration.  His allegation that members of ISIS revealed their identities freely to his mother was also rejected as being inconsistent with his allegation that members of ISIS needed to keep their membership strictly confidential. 

7.  The Board considered that the applicant’s evidence was contradictory and against common sense.  As a result, the Board found that the applicant had told lies at the hearing, it rejected his evidence and did not accept that he had ever joined ISIS or participated in bombing activities.

8.  In addition, the Board considered that effective state protection was available and internal relocation was viable.

9.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Therefore, the Board dismissed the applicant’s appeal on 8 October 2018 on all the applicable grounds.

Decision of the court below

10.  On 10 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision, but he did not raise any grounds for judicial review in his Form 86 and supporting affirmation.

11.  Following a hearing on 24 June 2020 at which the applicant appeared in person before the Judge, on 14 September 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [8] – [12] of the Form CALL-1 ([2020] HKCFI 2248, HCAL 2174/2018) as follows:

“8. On 10 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation, nor was he able to do so at the hearing of his application when he merely repeated his claim that he cannot return to his home country as his life would be in danger but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

10. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

11. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to this Court

12.  On 28 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that the Judge was wrong in law in holding that there was no state acquiescence or involvement, that the Judge failed to provide detailed reasons for decision, and that the Judge ignored country of origin information.

13.  The applicant lodged his written submissions on appeal on 7 May 2021.  Those submissions consist mostly of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case. 

14.  At paragraph 2(1) of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision.  The applicant argued that the Board failed to scrutinize the Director and that it is a general practice of the Board to not question or find fault with the Director’s decision.  At paragraph 2(2) of his submissions, the applicant argued that the Board should have but did not consider country conditions.

15.  However, the applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Board or the Judge.  At the hearing before this court, he said he had nothing to add.

Legal principles

16.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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

17.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or as to any specific errors in the Judge’s decision, nor did he add anything when he appeared in this court.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on his credibility. There was evidence which entitled the Board to make such findings.  The Board also found that state protection was available and internal relocation was viable, and thus concluded there is no real risk of harm in the event of refoulement.   

19.  It is clear from the Board’s decision that it assessed the applicant’s claim anew by way of rehearing and considered country conditions.  The applicant’s complaints about the Board and his bare assertion that it is the general practice of the Board not to question the Director’s decision is unfounded.

20.  The applicant’s grounds of appeal as regards the Judge are clearly without merit.  The Judge did not make any holding or finding as to state acquiescence or involvement, and as discussed above, assessment of state protection or country of origin information are primarily within the province of the Board.  The Judge also provided sufficiently detailed reasons that clearly set out the basis for his decision. As there appear to be no grounds that point to any error by the Judge, the appeal should be dismissed.

21.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

22.  For these reasons, this appeal is dismissed.