TOURAY OUSAINOU v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 474/2018

[2019] HKCA 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 474 OF 2018

(ON APPEAL FROM HCAL NO 1125 OF 2017)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 13 September 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 15 February 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 30 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUIND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2049.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Gambia.  He came to Hong Kong on 7 December 2012 as a visitor and was permitted to stay until 7 March 2013.  He did not depart and overstayed since 8 March 2013.  He surrendered to the Immigration Department on 28 March 2013.  On 26 March 2014, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by Alliance of Patriotic Reorientation and Construction (“APRC”), the government and the security forces including the police and the National Intelligent Agent (“NIA”) because he was a member of United Democratic Party (“UDP”) and there was a long standing animosity between UDP and APRC.

5.  By a Notice of Decision dated 21 September 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 13 November 2017, the Board dismissed the appeal on 15 December 2017.  The Board did not accept the applicant’s complaint at the hearing that he was assaulted by candle wax pouring on his private part by his enemies as the same was not mentioned in the non-refoulement claim form (“NCF”).  The Board also rejected that the omission was caused by the failure on the part of his duty lawyer to explain the NCF to him upon conclusion.  The Board further found that his evidence of torture during dentation by APRC was without basis and substance.  In any event, reasonable state protection and internal relocation were available to the applicant.  The Board did not consider the applicant was a truthful witness and rejected his case on all applicable grounds.

THE JUDGE’S DECISION

7.  On 21 December 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  The Judge had rightly decided to only deal with the application for leave for judicial review in relation to the Board’s decision as the Director’s decision is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant, see Re Moshsin Ali, CACV 54/2018, paragraph 45.  The grounds of intended challenge against the Board were as follows :

(1)  failing to make sufficient enquiry on the applicant’s case;

(2)  failing to appreciate the constraint of the applicant as a torture-claimant who has no or limited options at his disposal to bring his evidence before the Board; and

(3)  failing to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim and to prepare for the appeal hearing.

8.  On 13 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [26] – [31] for his refusal to grant leave :

“ Discussion

26.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

27.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45)

28.  The Applicant complained the Adjudicator failed to appreciate his limitation in adducing proof. There was, however, no evidence to show the Applicant had any particular difficulty in proving his case. He arrived in Hong Kong as early as December 2012 and raised his non-refoulement claim in March 2014. He had ample time to prepare for his case. The Adjudicator was certainly aware of the Applicant's alleged situation.

29.  Furthermore, the Applicant had legal assistance from the Duty Lawyer Service in both stages of the two-tier screening process. He was represented by a duty lawyer during the appeal. The Adjudicator’s report showed that the duty lawyer had argued diligently for the Applicant and the Adjudicator had engaged in joint endeavour with the Applicant (assisted by his lawyer) in the screening process. The Adjudicator made detailed inquiry of the Applicant's claim. The Applicant (and his lawyer) had been given reasonable and sufficient opportunities to state and elaborate the Applicant's case.

30.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant (assisted by his lawyer) in the screening inquiry. The Applicant (and his lawyer) had been given full opportunities to state and elaborate the Applicant's case. The Adjudicator was acquainted with the facts of the Applicant's case. She considered his claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in the Applicant’s complaints.

Conclusion

31.  The Applicant's complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 26 September 2018 in which he advanced the following grounds of appeal :

“ The grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

DISCUSSION

10.  The applicant made a vague and general complaint that he was not given the opportunity to plead his case properly before the Director and the Board.  We note that the applicant had legal assistance and representation from the Duty Lawyer Service in both stages of the two-tier screening process.  The Board’s decision showed that the duty lawyer had argued diligently for the applicant and he was given reasonable and sufficient opportunities to state and elaborate his case at the appeal hearing before the Board.  The applicant’s complaint is without basis and cannot stand.

11.  Further, as we have repeatedly stated, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable grounds are put forward to reverse the Judges’ decision, 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: Nupur Mst [2018] HKCA 524 at §14(6).  In this case, we can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the Board’s Decision.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.