RE SARR YAHYA

CACV 377/2020

[2021] HKCA 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 377 OF 2020

(ON APPEAL FROM HCAL NO. 513 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 3 August 2020 in HCAL 513/2018 refusing to extend time for the applicant to apply for leave to judicial review the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 12 April 2017 in which the Board confirmed the decisions of the Director of Immigration (“the Director”) dated 4 May 2016 and 3 March 2017.  The application for leave to apply for judicial review was also dismissed.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 3 February 2021, the applicant shall lodge with the court two sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays) but he failed to do so.  The Registrar further directed that if the applicant failed to lodge his skeleton argument, he shall be deemed to have waived his right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The Applicant is a national of The Gambia in Western Africa.  He last arrived in Hong Kong on 24 March 2014 with permission to remain as a visitor up to 31 March 2014.  However, he did not depart and overstayed.  He was arrested by police on 11 August 2014 and was then referred to the Immigration Department for investigation.  On 14 August 2014, he raised a non-refoulement claim on the basis that if he returned to Gambia, he would be harmed or killed by supporters of a rival political-party Alliance for Patriotic Reorientation and Construction (“APRC”) as he is a supporter of the United Democratic Party (“UDP”).  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1679. 

4.  By the Notice of Decision and Notice of Further Decision dated 4 May 2016 and 3 March 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant lodged an appeal to the Board against the Director’s decisions, and for which he attended an oral hearing on 28 March 2017.  By its decision dated 12 April 2017, the Board dismissed the appeal.  For the reasons set out at [24] to [32] of the decision, the Board found serious inconsistencies and contradictions in the applicant’s evidence as to his account of political involvement with UDP and threats from the APRC that raised serious concerns on the credibility of his claim.  Further, as a UDP candidate had won the presidential election in December 2016 and that the ex-president of the APRC has since gone into exile which means that APRC is no longer in power, the applicant would not face any risk of harm or persecution if refouled to Gambia.  For the aforesaid reasons, his claim for non-refoulement protection failed on all applicable grounds.    

6.  The applicant only filed his Form 86 for leave to apply for judicial review of the Board’s decision on 28 March 2018. Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), the application for leave to apply for judicial review be made promptly and in any event within 3 months from the date when the grounds for the application first arose.  By that time, the applicant was late for more than 8 months.  In the Form 86, the applicant did not explain for his delay nor provided any ground for seeking relief and in his supporting affirmation, he merely stated that he wanted to seek judicial review against the Board’s decision because it was unfair and unreasonable.

The Judge’s decision

7.  The applicant did not request for an oral hearing.  The Judge disposed the application on paper and by the CALL-1 Form dated 3 August 2020, the Judge refused to extend the time for the application for leave to the applicant to apply for judicial review and dismissed the leave application.  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 [15] – [18] for his decision:

“15.  In the Applicant’s case, a delay of more than 8 months must be considered as very substantial or excessive, for which he did not provide any explanation, and although it is noted that he may have been detained at Castle Peak Bay Immigration Centre (“CIC”) when he filed his Form 86, in the absence of any evidence from him that it might have been a factor for his delay, and that even if it were, the fact that he was still able to file his Form 86 from CIC that I am not satisfied that he has provided any good or valid reason for such a serious delay.

16.  As for the merit of his intended application, as noted above the Applicant did not put forward any proper or valid ground in support of his intended application.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.      

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.     

18.  In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The Appeal

8.  On 17 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision in which he set out the following grounds of appeal:

(1)  The Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in his case.

(2)  The Director and the Court failed to take his argument into account or the Director failed to give sufficient weight to his argument before reaching his decision.

(3)  The Board failed to make sufficient enquiry before making its decision.  The Board stated that the applicant had failed to give credible evidence to prove material elements of his claim.

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

10.  The applicant had failed to provide any proper ground of appeal to pinpoint any error of law or raise any discernible ground against the Judge’s decision and his appeal is doomed to fail.

11.  Further, the applicant’s complaints against the decisions of the Director and the Board were vague, general and without basis.  As had been said repeatedly, general assertions would not be enough to give rise to viable grounds of appeal in a matter of this nature: see Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2019] HKCA 950.  Upon our careful review of the Board’s decision, we found that the Board had provided every opportunity for the applicant to state his case and had engaged two way discussions on the material issues of his case.  It had duly set out its analysis and assessment of the applicant’s case and concluded that with the change of government and UDP winning the presidential election, the applicant would not face a real risk on all applicable grounds if refouled.  In our judgment, the Board’s findings and conclusions were well based and justified.

12.  The Judge had adopted the right approach and legal principles in refusing an extension of time for the application for leave to apply for judicial review and we agree with the Judge that the applicant’s delay was substantial and without valid and good reasons.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and rightly endorsed the Judge’s decision that applicant’s case is without merit and there is no prospect of success in his intended application for judicial review.

13.  For these reasons, we dismiss the appeal accordingly.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.