RE ENOGIERU STANLEY

CACV 276/2020

[2021] HKCA 125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2020

(ON APPEAL FROM HCAL NO. 1815 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung of 10 July 2020 in which he refused to grant leave to him to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of Nigeria. On 11 May 2009 he entered Hong Kong using a Gambian passport belonging to another person.  He raised a non-refoulement claim on 5 May 2011.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by members of a secret group who appeared around two years after the applicant’s father’s death, and threw the applicant out of his residence.

2.3  The background facts have been summarized in the decision of the Judge at [4]-[6].

3)  The Director’s Decision and the Director’s Further Decision

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 24 June 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2  By a further decision of the Director of 4 November 2016, the Director also assessed BOR 2 risk (risk of violation of the right to life) in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 6 July 2015.  After two hearings held on 23 November 2016 (applicant absent) and 18 October 2017, the Board dismissed the applicant’s appeal on 20 July 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant’s credibility was damaged when upon moving from Nigeria to Gambia, and from Gambia to Hong Kong, he did not raise non-refoulement protection as soon as practicable.  The Board found that the appellant’s story of owing an unknown amount of money to an unknown group powerful enough to harm him anywhere in Nigeria sounded like complete fiction.

5)  Decision of the Judge

5.1  During the hearing before the Judge, the applicant confirmed that he was free to express himself before the Immigration Department and the Board.  The applicant was able to read the decisions himself.  

5.2  The Judge held that the Board did not believe the facts of the applicant’s case.  He held that there was no factual basis to support the applicant’s case.  He held that the Director had determined that state protection and internal relocation were available.  

6)  Grounds of appeal

6.1  The applicant in the notice of appeal stated that he will face hardship if he returned.  He stated that the Board relied on information which was not officially recognized or simply hearsay.  He stated that the Board relied on outdated cases.

6.2  In his written submissions, the applicant referred to general legal principles and authorities on non-refoulement claim without specifying how they related to his case.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.