CAMARA LAMIN M v. TORTURE CLAIMS APPEAL BOARD

CACV 294/2024, [2024] HKCA 1044

On appeal from [2024] HKCFI 1826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2024

(ON APPEAL FROM HCAL NO 1765 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 15 July 2024, Deputy High Court Judge Bruno Chan 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 22 July 2024.

Background

2.  The applicant is a Gambian national. He last arrived in Hong Kong on 21 July 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 11 August 2014 and lodged his non-refoulement claim on 3 July 2017. His claim was made on the basis that, if he returns to Gambia, he will be harmed or killed by the people of the National Intelligence Agency of the Gambian government, other political parties as well as the Jola tribalist.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 27 October 2017, 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.  The Director considered that the assault by the unknown passenger in the public motor vehicle is just an isolated private dispute and there is no indication that the applicant’s enemies had exhibited intense and sustained effort to harm or kill him. The Director assessed that the future risk of harm upon the applicant’s return to Gambia is low because of the low intensity and frequency of past ill-treatment and threats. The Director further found that the threats and acts by the applicant’s enemies have nothing to do with the Gambian government or its authorities. The Director also 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. He attended the hearing of his appeal before the Board on 24 December 2018 and 3 January 2019. The Board considered that the additional details provided for the first time by the applicant at the appeal hearing about the passenger who previously attacked him are just recent fabrications designed to bolster his non-refoulement claim. The Board identified a number of material inconsistencies and implausibility in the applicant’s account of events and found that the applicant’s claims consist of little more than a series of bald assertions unsupported by any reliable objective evidence. Furthermore, even if accepting the applicant’s case at the highest, there is no evidence that any severe pain or suffering was ever inflicted on the applicant in the past and the Board assessed that any risk of harm in future upon the applicant’s return to Gambia is low. The Board further found that reasonable state protection exists in Gambia, which would minimise the risk to the applicant. Thus, the Board rejected the appeal on 18 June 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 26 June 2019 to seek leave to apply for judicial review against the decision of the Board. He stated in his supporting affirmation that he was not satisfied with the Board’s decision because he has problem in his country, but did not provide any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

7.  The hearing of the leave application was conducted before DHCJ Bruno Chan on 6 June 2024. The applicant submitted at the hearing that people came to his house in his home country and the condition was getting worse as the threats are getting more serious than what was mentioned in the Board’s decision.

8.  As the Board has given thorough and detailed analysis and reasoning in its decision in rejecting the applicant’s claim on its adverse finding of the applicant’s credibility, the judge found the applicant does not have any reasonably arguable basis to challenge the finding of the Board. The judge noted that the applicant has not identified any error of law or procedural unfairness in the process before the Board or in the Board’s decision. The judge was not satisfied that the applicant has any prospect of success in his proposed judicial review and dismissed the leave application on 15 July 2024.

Grounds of appeal

9.  In the Notice of Appeal filed on 22 July 2024, the applicant only stated that he wants to appeal, without putting forward any specific grounds of appeal.

Non-compliance with order for lodging of skeleton argument

10.  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.

11.  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 that the hearing date has been vacated and that the Court of Appeal will deal with this appeal on paper.

Analysis and disposition

12.  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.

13.  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.

14.  In this appeal, the applicant did not provide any grounds of appeal. He 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.

15.  As the appeal is devoid of merit, it is dismissed accordingly.