RE BAH MOHAMMED

CACV 413/2020

[2021] HKCA 414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 413 OF 2020

(ON APPEAL FROM HCAL 851/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 24 August 2020, Deputy High Court Judge C P Pang (“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 26 April 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 24 April 2017 rejecting the applicant’s non-refoulement claim. 

2.  On 31 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Guinean national.  He arrived in Hong Kong on 27 July 2012 and was permitted to stay as a visitor until 10 August 2012.  He did not depart and overstayed.  On 6 July 2015 he was arrested by the police and transferred to the Immigration Department.  The applicant lodged a non-refoulement claim on 10 July 2015. 

4.  The applicant is a Christian.  His claim was based on the fears that, if he returned to Guinea, he would be harmed or even killed by his Muslim relatives unless he converted to Islam, and that if he returned to Uganda where he had previously resided, he would be harmed or even killed by a previous customer named Zakaria to whom he owed money.  The factual background was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2020] HKCFI 2052). 

5.  By notice of decision dated 24 April 2017, the Director, having assessed the applicant’s claim on all applicable grounds, rejected his claim.  The applicable grounds are 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.  A hearing was held on 14 March 2018, during which he was interviewed by the Board.  Because the applicant had never been physically or mentally harmed by his Muslim relatives or by Zakaria, and because the threats he had received were isolated incidents, the Board found that he did not suffer ill-treatment to the necessary level required.  The Board also found that his conflicts with his Muslim relatives and Zakaria were in the nature of private disputes. 

7.  The Board thus concluded that there was no real risk of harm in the event of refoulement.  The Board also concluded that state protection was available and internal relocation viable.  The Board dismissed the applicant’s appeal on 26 April 2018 on all the applicable grounds. 

Decision of the court below

8.  On 16 May 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his affidavit filed in support of his application, the applicant stated that his Muslim relatives were after him and would kill him because he had changed from a Muslim to being a Christian, and that the Board had not looked into his case properly. 

9.  Following consideration of the documents only, the Judge on 24 August 2020 refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [15] of the Form CALL-1 ([2020] HKCFI 2052, HCAL 851/2018) as follows:

“10.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

11.  As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

12.  In the present case, the Board in fact refused the applicant’s appeal/ petition on the ground that, based on the facts he claimed, the applicant would not be at any real risk of harm or ill-treatment. There were no substantial grounds for believing that he would be subjected to ill treatment or harm. It also found that state protection was available and internal relocation was reasonable option. As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.

13.  In the Form 86 and affirmation in support, no specific grounds for judicial review are stated. The applicant only stated that his Muslim relatives would kill him because he changed from a Muslim to Christian. He failed to pinpoint to any unfairness or unreasonableness of the Board.

14.  Given the nature and circumstances of the threats which took place very long time ago and the fact that the applicant did not make reports to the authorities, I cannot see any reasonable arguable basis to challenge the findings of the Board. It is also to be noted that the applicant only lodged his non-refoulement protection long after he had overstayed in Hong Kong, which should be considered as conduct inconsistent with someone in genuine fear for his life and safety.

15.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.”

Appeal to this Court

10.  On 31 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal were that he would face hardship if he was to return to his home country and that the Board had relied significantly on hearsay news from sources that are not officially recognized, and on outdated cases which did not reflect the drastic changes that had taken place.  The lack of credible sources of information had resulted in the Board making groundless speculations. 

11.  Pursuant to the Court’s directions of 10 December 2020, the applicant lodged his written skeleton submissions on appeal on 23 December 2020.  Those submissions consisted of general statements of law quoted from decided cases, without identifying how they specifically relate to or apply in this case.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any errors made by the Board or the Judge. 

12.  The applicant appears in person during the appeal hearing and has nothing to add to his written submissions. 

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 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

14.  As mentioned earlier, the applicant did not in his Notice of Appeal or skeleton submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  He also does not do so during the appeal hearing. 

15.  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. 

16.  We would only examine the Judge’s decision in light of the grounds of appeal advanced by the applicant in determining whether to reverse the decision.  As there appears to be 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 basing on its finding of facts that there was no real risk of harm to the applicant if he was to return to Guinea, Uganda or Nigeria where the applicant had been brought up or had resided. 

18.  The Board after thorough analysis of the evidence adduced by the applicant and having referred to the Country of Origin Reports of the 3 countries published by the United States Department of State in 2016 or 2017 and other reports by various reputed organisations concluded that state protection was available and internal relocation viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

19.  The applicant has not advanced any valid public law grounds. 

20.  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 is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge. 

21.  For these reasons, this appeal is dismissed.