RE MARSHALL BILL O

CACV 246/2019

[2019] HKCA 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2019

(ON APPEAL FROM HCAL NO 524 OF 2018)

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J U D G M E N T

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Hon Bharwaney J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 24 May 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Liberia.  He arrived in Hong Kong on 2 May 2008 and was permitted to remain as a visitor for 7 days.  He did not depart upon the expiry of his permission to remain, but had overstayed illegally.  He was arrested by the police on 22 October 2013.  He lodged a claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”) on 20 February 2014.  His CAT claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by his granduncle because he refused to convert from Christianity to Islam as requested by his granduncle.  The brief facts of this case were set out by the judge in [2] – [7] of the Form CALL-1 ([2019] HKCFI 750).

4.  By two notices of decision dated 18 November 2015 and 31 October 2016, the Director of Immigration (“the Director”) assessed the applicant’s claim and decided it against him.  The former decision covered  the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter the BOR 2 risk[4].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decisions.  An oral hearing was held on 5 March 2018, and the Board dismissed the appeal/petition on 15 March 2018.  In its decision[5], the Board found that the case concerned only a private intra-familial disagreement over religion without any state involvement.  The accused had never been arrested, detained or imprisoned in Liberia.  He did not sustain any injury, let alone injury that was severe enough to meet the minimum level of severity.  The Board also did not accept that, given the lapse of 10 years, the applicant’s granduncle would still be interested in locating the applicant all over Liberia in order to kill or harm him.  Accordingly, the Board was not satisfied that the applicant would face a substantial risk of harm if refouled.  Additionally, and independent of the above reasons, the Board found that the applicant was not a reliable witness because (among others) he did not lodge his non-refoulement claim at the first available opportunity, but instead waited until he was arrested by the police over 5 and a half years after his arrival in Hong Kong.

The judge’s decision

6.  The applicant filed his Form 86 on 29 March 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions. The grounds as contained in Form 86 were set out by the Judge in [13] of the Form CALL-1.

7.  Upon the request of the applicant, an oral hearing was originally held on 25 January 2019. The hearing was however adjourned due to the applicant’s illness.  The applicant attended in person at the adjourned hearing on 27 February 2019.

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [14] – [18] of the Form CALL-1 as follows:

“14. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him time or opportunity to provide relevant evidence for his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his present application or his hearing before me, he did not produce any additional evidence or additional grounds for his intended challenge. In the absence of any legal error or procedural unfairness being clearly or properly identified by the applicant in those decisions, I do not see any basis or merit in any of his grounds or complaints, or any prospect of success in his intended challenge.

15. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

16. Furthermore, the fact 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 Liberia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. 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.

18. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

9.  On 4 June 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“1. The Learned Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration and the Adjudicator.

2. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

3. The Applicant will face hardship if he is to return back to his 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.

4. 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.

5. The Learned Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Decision of the Director whereby the Director and Adjudicator was required to give reasons justifying the Decision.” (sic)

10.  The applicant lodged his written submission on 30 July 2019.  In it, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner in dealing with his application.  He also made reference to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  Lastly, the applicant referred to section 37ZT for the late filing of the notice of appeal.

11.  By a letter dated 4 June 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

12.  We heard the appeal on 3 September 2019. As the applicant had failed to appear, we decided that we would deal with his appeal on paper. Before we handed down our judgment, the applicant wrote by letter dated 5 September 2019 apologising for his failure to attend the hearing on account of his mistaken belief that the appeal was to be heard on 22 September 2019. We acceded to his request that another hearing be scheduled. The applicant appeared at the rescheduled hearing of the appeal on 13 September 2019. In his oral submissions before us, he repeated the grounds that he had previously advanced before the Director which we have noted in §3 above.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(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.  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)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 was a fresh application for judicial review.

Discussion

14.  In the present case, the Board rejected the applicant’s non-refoulement claim on the ground that it was not satisfied that the applicant would face a substantial risk of harm if refouled.  It was also found that the applicant was not a reliable witness.  As explained above, the assessments of risk of harm and credibility are within the province of the Board.  The Court will not intervene with such findings unless they contained errors on public law grounds.  Having considered the case with rigorous examination and anxious scrutiny, the Judge did not find any errors that could reverse the findings of the Board.

15.  The ground relating to the insufficient chance to arrange relevant evidence (Ground 2) is a regurgitation of the argument that had been advanced before, and was duly rejected by, the Judge.  The applicant did not pinpoint any error on the part of the Judge’s decision.  Nor do we see any viable ground to reverse it.

16.  The grounds relating to the Board’s handling of the COI materials (Grounds 3 and 4) had not been canvassed before the Judge.  As explained, this Court will not entertain new arguments which are fact-and-evidence sensitive and of which leave to apply for judicial review was not sought within time.

17.  In any event, all the grounds put forth by the applicant in the notice of appeal are general assertions without particulars in support.  They do not constitute viable grounds of appeal.

18.  We cannot see how the legal authorities cited by the applicant in his written submission can avail him in this appeal.  Nor is section 37ZT relevant to this appeal.

19.  In this appeal, the applicant failed to pinpoint any viable ground that could reverse the decision of the judge.  Having considered the materials before us, we agree with the Judge that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.