RE CEESAY ABDOULIE

CACV 271/2021

[2021] HKCA 1619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 271 OF 2021

(ON APPEAL FROM HCAL NO 2673 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 17 May 2021[1] refusing 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 (“Board”) dated 22 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 November 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a Gambian national.  He arrived in Hong Kong on 13 August 2014 and was permitted to remain as a visitor until 11 November 2014.  He did not depart Hong Kong, and overstayed.  He surrendered himself to the Immigration Department on 14 November 2014, and lodged a non‑refoulement claim the same day. 

3.  The applicant’s claim was based on the fear that, if he returned to Gambia, he would be harmed by the government there for having cut down some trees in a forest without permission, thereby unknowingly breaking the law.  He said he decided to flee to Hong Kong after being told by his parents that what he had done was prohibited and that the government might arrest him.  The factual background of his claim was summarized at [35] to [38] of the Board decision.

4.  By notice of decision dated 30 November 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  The Board decided the appeal without a hearing, because the Board accepted the applicant’s factual account, so that there was no need for an oral hearing.  Nevertheless, the Board found that based on the applicant’s case, accepted as it stood, there was no real risk of harm in the event of refoulement, because in the worst case scenario he would be prosecuted for an offence which carried a maximum penalty of a small fine or up to 12 months’ imprisonment under the Forest Act 1998.  If the applicant was a first time offender, the Board considered that it would be unlikely for him to go to prison.  There was nothing on the facts to suggest that the Gambian government or anyone else would harm or kill the applicant.

6.  Accordingly, in its decision dated 22 November 2018 the Board dismissed the applicant’s appeal with reference to all the applicable grounds.

Decision of the court below

7.  On 26 November 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, in his Form 86 and supporting affirmation he did not set out any grounds for judicial review.

8.  Following consideration of the documents only, on 17 May 2021 the Judge refused to grant leave for judicial review.  The reasons for the refusal were set out at [13]‑[15] of the Form CALL‑1 as follows:

“ 13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13.… …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.’

14. 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.

15. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

9.  On 24 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  Again, he did not set out any grounds of appeal.

10.  On the same day as the Notice of Appeal, the applicant consented in writing for the appeal to be disposed of on paper without an oral hearing.

11.  In her directions of 14 July 2021, the Registrar of Civil Appeals noted that no proper ground of appeal had been put forward in the Notice of Appeal, and directed the applicant to file a supplemental Notice of Appeal setting out proper grounds of appeal on or before 28 July 2021.  The applicant failed to do so.  As a result, the Registrar of Civil Appeals directed on 10 August 2021 that unless the applicant lodged with the court a supplemental Notice of Appeal by 24 August 2021, he would be deemed to have abandoned his right to rely on any proper ground of appeal.  Again, the applicant failed to lodge any supplemental notice of appeal.

12.  The applicant lodged his written submissions for the appeal on 22 July 2021.  In those submissions, the applicant reiterated the reason for seeking non‑refoulement protection and the procedural history of his claim.  However, the only argument or ground of appeal that he raised against the Judge’s decision was that the court only followed the Board’s points but did not pay any attention to the applicant’s points.  He claimed that if he was sent back to his country, the government there would kill him.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

Discussion

14.  As mentioned earlier, the applicant did not raise any grounds of appeal in his Notice of Appeal, and failed to comply with the Registrar of Civil Appeals’ directions to lodge a supplemental notice of appeal setting out proper grounds of appeal. 

15.  The applicant’s sole argument in his submissions, ie that the Judge only followed the Board’s points but failed to consider the applicant’s points, is plainly without merit because he did not put forward any substantive grounds for his intended application for judicial review, and the Board had actually accepted his factual account as being credible.

16.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection because it considered that under the relevant Gambian law, even in the worst case scenario he would be prosecuted for an offence which carried a maximum penalty of a small fine or up to 12 months’ imprisonment.  Further, as a first time offender, it would be unlikely for the applicant to be sent to prison. There was nothing to suggest that the Gambian government or indeed anyone else would harm or kill the applicant.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings were within the purview of the Board.  The court will not interfere with such assessments unless they are shown to be vitiated on public law grounds.  But the applicant has wholly failed to advance, let alone establish, any such grounds.

18.  We agree with the Judge that there is no reasonably arguable case for judicial review.  The Judge was right to refuse leave. 

19.  For these reasons, this appeal is dismissed.