Case Detail

CACV 556/2018

[2019] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

________________________

BETWEEN
	BAH MOHAMED BACHIR	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Kwan VP, Yuen JA and Au JA

Date of Written Submissions: 9 May 2019

Date of Judgment: 27 June 2019

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 18 April 2019 ([2019] HKCA 462) dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2. By a Notice of Decision dated 15 July 2016 and a Notice of Further Decision dated 24 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3. The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decisions and his appeal was dismissed by the Board on 8 September 2017.

4. He filed a Form 86 on 20 October 2017 to seek leave to apply for judicial review in respect of the decisions of the Director and the Board. His application was refused by Campbell-Moffat J on 12 November 2018.

5. The applicant filed a Notice of Appeal against the decision of the judge on 26 November 2018. The appeal was heard on 16 April 2019. It was dismissed by the Court of Appeal on 18 April 2019 as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

6. The applicant filed a Notice of Motion on 3 May 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 9 May 2019.

7. The grounds for the intended appeal are stated in his written submissions and may be summarized as follows:

(1) the adjudicator did not read his non-refoulement claims;
(2) the adjudicator’s judgment was unfair;
(3) the adjudicator erred in finding that the fear is low;
(4) the adjudicator erred in saying that the applicant was in underwear;
(5) the adjudicator erred in not finding that the applicant’s injury on left leg was caused by ill-treatment;
(6) the adjudicator erred in finding that the enemies will not find the applicant after such a long period of time;
(7) the adjudicator took into consideration the irrelevant fact that he was able to obtain a passport.

8. The applicant also submitted 7 pages of articles related to violent clashes, murder and police attack in Ghana attached to his written submissions.

9. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 May 2019 that the Notice of Motion shall be determined on paper only without an oral hearing. It is appropriate to determine this application on paper and we do so accordingly.

10. The applicant did not take out a summons to apply for leave to adduce the further evidence attached to his submissions.

11. The articles submitted by the applicant were all published before the Court of Appeal hearing on 16 April 2019. They could have been obtained and adduced before the hearing with reasonable diligence. In any event, the contents of the articles have no direct relevance to the applicant’s claim. The further evidence sought to be adduced plainly does not satisfy the first two conditions in Ladd v Marshall [1954] 1 WLR 1489 at 1491. And there are no exceptional circumstances in this case which justify the admission of such further evidence in the interests of justice. We refuse leave to adduce further evidence.

12. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

13. The grounds stated in the applicant’s written submissions were not raised in his previous application for leave to apply for judicial review or in his appeal to the Court of Appeal against the judge’s decision. There is no good reason why he should be allowed to rely on any of those new arguments at this stage. In any event, the new arguments are plainly not reasonably arguable.

14. The applicant has failed to identify in his Notice of Motion or written submissions any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

15. We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)	(Maria Yuen)	(Thomas Au)
Vice President	Justice of Appeal	Justice of Appeal

The Applicant, acting in person

CACV 556/2018

[2019] HKCA 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

________________________

BETWEEN
	BAH MOHAMED BACHIR	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Kwan VP, Yuen JA and Au JA in Court

Date of Hearing:	16 April 2019
Date of Judgment:	18 April 2019

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the judgment of the court):

1. This appeal is brought by the applicant, a national of Ghana, against the decision of Campbell-Moffat J on 12 November 2018 ([2018] HKCFI 1849). By her decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. His non‑refoulement claim was made on the basis that if he were to be returned to Ghana, he would be (i) harmed or killed by his stepmother Fatimah and her children because they wanted to deprive him of his share in his father’s estate, (ii) lynched by the angry villagers who considered him as an abominable culprit, and (iii) arrested and tortured by the police because Fatimah had framed a false rape case against him.

2. Earlier on, another division of the Court of Appeal[1] had dealt with this appeal on paper, on the basis that the applicant had failed to comply with an unless order to lodge a skeleton argument for the appeal within time and the hearing date was thereby vacated. Judgment was handed down on 1 March 2019 dismissing the appeal ([2019] HKCA 254). Upon discovering a clerical error in dispatching the wrong notice of hearing of the appeal to the applicant, that judgment was set aside by the Court of Appeal of its own motion on 11 March 2019, in the exercise of its power under Order 20 rule 11 of the Rules of the High Court ([2019] HKCA 280).

3. A new notice of hearing of the appeal scheduled for 16 April 2019 was issued to the applicant and he has lodged his skeleton argument within time prior to this hearing.

4. The background of the applicant, the Director’s decision, the Board’s decision, the intended judicial review and the judge’s decision have all been summarized in the earlier judgment of the Court of Appeal on 1 March 2019 and will not be repeated.

5. As has been noted in the earlier judgment, in the Notice of Appeal against the decision of Campbell-Moffat J, the applicant merely stated “Appeal again refused” in the space for setting out the grounds of appeal.

6. In his skeleton argument, the applicant advanced these matters as grounds of appeal:

(1)   The judge’s decision has ignored the fact that he is still on the watch list and therefore his life is still in danger if he is forced back to his country.
(2)   There are growing concerns regarding insecurity following the inability of the police in Ghana to handle some groups being formed to harass people who have been targeted and most of the members of the group that made the applicant flee to Hong Kong have been recruited into the vigilante group, the “Delta Force, Invisible Force”, and other affiliated groups across Ghana.
(3)   In recent years, there have been a number of mob attacks against people who have been suspected to be associated with homosexuality in Ghana. His case has been “associated with homosexuality or gay” by his stepmother and her children as a way to eliminate him. He has never been given the opportunity for oral hearing to demonstrate his fear following “a number of evidence” that has been published from various Ghana local newspapers. The decision of the judge has relied on country of origin’s report from foreign researchers who only rely on selected topics which mostly highlight the positive side of the country.
(4)   His attackers continue to operate under those terrible vigilante groups that have “overpowered” the Ghana police. Cases are selectively followed and arrests are made by the police without proper investigation. There is therefore no guarantee that the police would be a solution to his problems.

7. The applicant also attached 11 pages of new evidence to his written submissions which appear to be some articles concerning LGBT people and the police in Ghana.

8. The applicant did not set out his grounds for seeking judicial review in the Form 86 he filed on 20 October 2017 or in his two supporting affirmationsfiled on 20 October 2017 and 23 April 2018. He merely exhibited to his affirmations some articles related to the police and how the courts dealt with LGBT people and sexual crimes in Ghana.

New Evidence

9. The applicant did not take out a summons to apply for leave to adduce further evidence being those articles attached to his submissions.

10. Although the Court of Appeal has the power to receive further evidence, according to Order 59 rule of the Rule 10(2) of the High Court, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. Further evidence is admissible on an appeal only where such evidence: (i) could not have been obtained at the trial with reasonable diligence; (ii) would or might, if believed, have a very important effect on the mind of the tribunal; and (iii) is of a sort which inherently is not improbable (the three conditionsin Ladd v Marshall [1954] 1 WLR 1489).

11. Out of the several articles submitted by the applicant, only the two articles related to the killing of seven Zongo youth[2] appeared to be published after the date of the judge’s decision on 12 November 2018[3]. However, the killing incident does not seem to be of much relevance to the applicant’s case. The applicant has not adduced any evidence which shows that he had been arrested or ill‑treated by the police. The further evidence is far from sufficient for establishing the applicant’s case for the purpose of obtaining leave to apply for judicial review.

12. The remaining articles[4], which relate to LGBT or homosexual people, do not fulfil the first two Ladd v Marshall conditions. They could have been obtained and adduced before the judge with reasonable diligence. More importantly, the applicant is not homosexual, according to his own case[5], and he had not been ill-treated or arrested for being suspected to be homosexual.

13. We refuse to give leave to the applicant to adduce such further evidence attached to his submissions.

Legal Principles

14. The relevant legal principles governing appeals in non‑refoulement cases have been set out by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14 and are as follows.

15. 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 Country of Origin Information (“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.

16. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Discussion and disposition

17. The judge assessed that there is no error of law or procedure and that there is no procedural unfairness nor a failure to adhere to a high standard of fairness throughout in the decision of the Board, whereby it was found that the applicant’s evidence is inconsistent and implausible and his explanations were non-persuasive. The Board considered that the applicant had fabricated his claims and gave cogent reasons for its decision:

(1)   The applicant claimed that after being accused of raping his stepmother, he left home wearing only underwear having just had a shower and bought a bus ticket with coins in his underwear. The adjudicator found it implausible that he would have coins in his underwear..
(2)   He claimed in the Non‑refoulement Claim Form that it was a random stranger who recommended to him to hide in a village but he told the adjudicator it was in fact a neighbour that he knew.
(3)   His successful application to the Ghanaian authorities for a Ghanaian passport is inconsistent with his claim that he was the subject of a nationwide police hunt on rape charges.
(4)   The applicant sought to rely on unreliable email from one Mr J and this further undermines his credibility generally.

18. The applicant failed to put forward any evidence or viable arguments to refute the factual basis which supports the Board’s decision against him. The judge is correct in deciding that there is no reasonably arguable basis upon which the applicant could challenge the Board’s decision in a judicial review.

19. There is no merit in any of the contentions put forward by the applicant. We therefore dismiss the appeal.

(Susan Kwan)	(Maria Yuen)	(Thomas Au)
Vice President	Justice of Appeal	Justice of Appeal

The Applicant, unrepresented, acting in person

[1] Hon Cheung JA, Kwan JA and Chu JA

[2] Shot by a police patrol team who allegedly mistook them for members of an armed robbery gang.

[3] The applicant did not request an oral hearing so his application for leave to apply for judicial review was considered by the judge on paper.

[4] Some other articles which cover similar topics were submitted to the court below.

[5] Decision of the Board, §38

CACV 556/2018

[2019] HKCA 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

________________________

BETWEEN
	BAH MOHAMED BACHIR	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Cheung JA, Kwan JA and Chu JA

Date of Judgment:

11 March 2019

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the court):

1. On 1 March 2019, this court handed down its judgment dismissing the applicant’s appeal against the decision of Campbell‑Moffat J on 12 November 2018 ([2018] HKCFI 1849). The order in respect of this judgment has since been drawn up and sealed.

2. We had dealt with the appeal on paper on the basis that there was non-compliance with an unless order of the Registrar of Civil Appeals dated 18 December 2018 to lodge skeleton argument not less than 28 days before the hearing of the appeal which was scheduled to take place on 11 March 2019. A notice of hearing of the appeal was issued on 23 January 2019. The skeleton argument should have been lodged on or before 11 February 2019.

3. On 12 February 2019, the court wrote to the applicant informing him that as there was non-compliance with the unless order, the hearing date of the appeal has been vacated and his appeal will be dealt with on paper.

4. The applicant then wrote to the court on 21 February 2019 stating that he “did not receive update” of the Registrar’s direction and he only received the court’s letter on 17 February 2019 informing him that the hearing date has been vacated.

5. As the notice of hearing was sent to the applicant by registered and ordinary post and was not returned undelivered, we did not accept the applicant’s assertion that he did not receive it. We proceeded to deal with his appeal on paper and handed down our judgment on 1 March 2019.

6. On 4 March 2019, the court received a letter of the same date from the applicant. He enclosed a copy of an envelope correctly addressed to him with a post mark of 23 January 2019 and a copy of a notice of hearing dated 23 January 2019. However, the notice of hearing was in relation to an appeal case of another applicant (CACV 557/2018), not the applicant’s appeal (CACV 556/2018). This bears out his assertion that he did not receive the notice of hearing for his appeal.

7. There being a clerical error in despatching the wrong notice of appeal to the applicant, we hereby exercise our power under Order 20 rule 11 of the Rules of the High Court to correct this error and set aside the judgment of 1 March 2019. A new notice of hearing will be issued to the applicant in time and he will be given opportunity to lodge skeleton argument in respect of his appeal not less than 28 days before the new hearing date of his appeal.

(Peter Cheung)	(Susan Kwan)	(Carlye Chu)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The Applicant, acting in person

CACV 556/2018

[2019] HKCA 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

________________________

BETWEEN
	BAH MOHAMED BACHIR	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Cheung JA, Kwan JA and Chu JA

Date of Judgment:

1 March 2019

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the court):

1. This is the applicant’s appeal against the decision of Campbell-Moffat J on 12 November 2018 ([2018] HKCFI 1849). By her decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2. The applicant is a national of Ghana who arrived in Hong Kong on 18 June 2011 and was arrested by police on 30 November 2011 for overstaying. After he was transferred to the Immigration Department, he lodged a non-refoulement claim by way of written representation on 2 December 2011. His non-refoulement claim was made on the basis that if he were to be returned to Ghana, he would be (i) harmed or killed by his stepmother Fatimah and her children because they wanted to deprive him of his share in his father’s estate, (ii) lynched by the angry villagers who considered him as an abominable culprit, and (iii) arrested and tortured by the police because Fatimah had framed a false rape case against him. He has been released on recognizance pending the determination of his claim.

The Director’s decision

3. By a Notice of Decision dated 15 July 2016, the Director rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].

4. The Director decided that the ill-treatment inflicted on the applicant, whether physical or mental, even if true, had not reached the threshold of a minimum level of severity. His problem with Fatimah and her children is a private dispute and his conduct was inconsistent with that of a person who genuinely feared of being attacked, tortured or killed. There are no substantial grounds for believing that the applicant would be subjected to a real future risk of being harmed or tortured by the police. In addition, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the non-refoulement application was rejected by the Director.

5. By a Notice of Further Decision dated 24 August 2017, the Director rejected the applicant’s claim on all applicable grounds including the right to life under article 2 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”). The Director considered that the evidence adduced by the applicant, which was an email from his friend, was hearsay information and the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights, particularly BOR 2 risk, being violated upon his return to Ghana.

The Board’s decision

6. The applicant’s appeal against the Director’s decisions was heard by the Board on 29 August 2017.The Board considered that the applicant was not a credible witness because of his inconsistent and implausible evidence as well as his non-persuasive explanations. The Board did not accept that the applicant would face a real risk of proscribed harm if he is refouled to Ghana. Therefore, the appeal was rejected on 8 September 2017.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 20 October 2017, and subsequently filed a second affirmation on 23 April 2018, to seek leave to apply for judicial review against the decisions of the Director and the Board. The two affirmations merely exhibited a number of documents. He did not state any grounds of application in the Form 86 or his affirmations.

The judge’s decision

8. The judge decided that there is no error of law or procedure. There is also no evidence of procedural unfairness or a failure to adhere to a high standard of fairness throughout. The judge concluded that there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and refused his leave application on 12 November 2018 accordingly.

9. The applicant filed a Notice of Appeal against the decision of the judge on 26 November 2018.

The grounds of appeal

10. In the Notice of Appeal, the applicant merely stated “Appeal again refused” in the space for setting out the grounds of appeal.

Non-compliance with unless order

11. Directions were given by the Registrar of Civil Appeals by a letter dated 18 December 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

12. The appeal was scheduled to be heard on 11 March 2019.

13. A notice of hearing of the appeal dated 23 January 2019 was issued and sent to the applicant by registered and ordinary post. In the notice, he was reminded that he should comply with the above directions of the Registrar. The letters sent to the applicant have not been returned undelivered.

14. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019). As there was non-compliance with the unless order, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 12 February 2019 that the hearing date of 11 March 2019 has been vacated and that his appeal will be dealt with on paper by the Court of Appeal.

15. On 21 February 2019, the applicant telephoned the court clerk (apparently upon receipt of the letter dated 12 February 2019) stating that he did not receive the directions given by the Registrar on 18 December 2018.

16. He also wrote to the court on 21 February 2019 referring to the Registrar’s letter sent to him on 18 December 2018 and paragraph 3 in particular in which it was stated that upon the hearing date being fixed, “[he] will be given 28 days to submit 3 sets of skeleton argument to the court”. He stated that he “did not receive update of it” and he was in the appeal registry to submit the skeleton argument but the staff asked him to wait for “update of hearing”. He reiterated he did not receive the “update” and the next letter he received was on 17 February 2019 informing him he had failed to lodge his skeleton argument, which was not true.

17. The letter of the Registrar dated 18 December 2018 giving directions on the lodging of a skeleton argument not less than 28 days before the hearing of the appeal is clear. The notice of the hearing date was sent to the applicant informing him of the date and time of the hearing of the appeal. That notice has not been returned to the court undelivered. No “update” of the Registrar’s directions of 18 December 2018 is required.

18. A record is maintained by the court staff of any written or verbal communication from the applicant. There is no record of any attempt by him to lodge a skeleton argument. If he had indeed attempted to lodge the skeleton argument before it was due (as he would appear to say), it is unlikely that the staff of the registry would deter him from doing so.

19. We do not accept the applicant’s explanation for his failure to comply with the unless order. We will deal with his appeal without an oral hearing.

Discussion and disposition

20. 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 shall be dismissed[4].

21. As the applicant did not put forward any grounds of appeal, we dismiss his appeal accordingly.

(Peter Cheung)	(Susan Kwan)	(Carlye Chu)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The Applicant acting in person

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

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

[3] 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.

[4]Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

BAH MOHAMED BACHIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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