RE FRANCIS, MICHAEL CHIDIEBERE

CACV 417/2019

[2020] HKCA 248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 417 OF 2019

(ON APPEAL FROM HCAL 1682/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

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

Background

2.  The applicant is a Nigerian national.  He arrived in Hong Kong on 12 December 2010 with a permission to stay as a visitor until 2 January 2011.  He did not depart upon the expiry of the permission to stay and overstayed illegally. Over 5 years later, on 17 March 2016, he surrendered to the Immigration Department.  He raised his non-refoulement claim by way of written representations dated 28 July 2016 and 1 August 2016.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the Boko Haram, an Islamic extremist group, because of his Christian faith. According to him, his father (who was a Christian pastor) was killed by the extremists in a killing incident known as the Great Kaduna Massacre in March 2010.  He also feared that, if returned to Nigeria, he would be killed by some clan members of his uncle (who passed away in about 2010) because of a land dispute between his father and his uncle.  The factual background of this case was set out by the Judge at [2] – [4] of the Form CALL-1 ([2019] HKCFI 901).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].  By a notice of decision dated 24 April 2017[5], the Director decided the claim against the applicant.

5.  The applicant lodged an appeal/petition against the Director’s decision to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”).  After an oral hearing on 9 February 2018, the Board confirmed the Director’s decision and dismissed the applicant’s appeal on 19 June 2018[6]. The Board considered that the applicant’s evidence relating to the land dispute was vague and lacked details[7].  It found no reason for the applicant’s uncle wishing to kill him in order to obtain the title of the land in dispute. The claim of the applicant’s father to the land was weak and had long been abandoned. The uncle could have obtained the title in accordance with the Nigerian law[8].  Having assessed in details the applicant’s oral evidence given during the hearing, the Board also found that the applicant had fabricated his claim of Christian belief and that he was the child of two Christian pastors[9].  The Board concluded that the applicant would not be at risk from his uncle’s clan or the Islamic extremist group if he returned to Nigeria[10].  Upon considered the relevant country of origin information, the Board also considered that internal relocation was a viable option for the applicant[11]. 

The Judge’s decision

6.  On 20 August 2018, the applicant applied to the court for leave to apply for judicial review. However, neither the Form 86 nor the supporting affirmation filed on the same day contained any grounds for judicial review.

7.  The applicant did not request to have an oral hearing, and the Judge considered it appropriate to dispose of the application on the papers.  As mentioned earlier, the Judge refused leave to the applicant to apply for judicial review.  Her reasons in refusing leave were set out at [10] – [12] of the Form CALL-1 as follows:

“ 10.  In the applicant’s affirmation he exhibits some documents including a statement as his “grounds of appeal” which was a document he relied on and submitted for his appeal/petition before the TCAB.  However, he has not set out any grounds to support this application.  I note in his Form 86, his notice of application of leave to apply for judicial review he lists the proposed respondent to be the Director of the Immigration Department but seeks relief in respect of the TCAB decision, he lists the date of his TCAB hearing as the decision in respect of which relief is sought.  He then lists the Immigration Department as the interested party.  I read this notice of application to propose the TCAB as the respondent.

11.  Even though there are no grounds relied upon by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether he made any errors of law and whether he analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

12.  A reading of his decision shows that he gave full consideration to the applicant’s claim and evidence as well as the COI.  He provided full reasons for his decision to dismiss the appeal.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  He did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.”

The appeal

8.  Although the applicant did not lodge his notice of appeal within the statutory time limit, the Judge by an order dated 30 August 2019 granted an extension of time for him to do so.

9.  In his notice of appeal filed on 9 September 2019, the applicant stated that:

“ That my appeal will be given a second consideration because the situation is still bad.”

10.  In his skeleton submissions lodged on 17 December 2019, the applicant reiterated the factual background of his case.

11.  By a letter dated 9 September 2019, the applicant gave consent for this appeal to be heard before a two-member court.

12.  We heard the appeal on 16 April 2020.

Legal 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 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; and

(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.  In the present case, the Board rejected the applicant’s claim because it did not consider that he would be at risk if refouled.  It was also found that the internal relocation was a viable option for the applicant.  As explained above, the evaluation of the risk of harm and the finding of internal relocation are within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  Having examined and scrutinized the Board’s decision, the Judge did not find any reasonable prospect of success to challenge the findings of the Board in the intended judicial review.

15.  What was stated in the notice of appeal was an invitation to this court to reassess the applicant’s claim afresh.  As explained above, this is not the function of this Court when the applicant could not pinpoint any error on the part of the Judge.

16.  We are of the view that the applicant has viable ground to warrant this Court reversing the decision of the Judge.  In our view, the judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

17.  For these reasons, we dismiss the appeal.