Case Detail

CACV 484/2021

[2022] HKCA 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 484 OF 2021

(ON APPEAL FROM HCAL NO 1943 OF 2018)

________________________

BETWEEN
	Nguya Adam Iddi	Applicant
	and
	Torture Claims Appeal Board
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan Ag CJHC and Lisa Wong J in Court

Date of Written Submission: 8 February 2022

Date of Judgment: 24 June 2022

________________________

J U D G M E N T

________________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Lisa Wong J) handed down on 21 January 2022 ([2022] HKCA 136). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 22 October 2021 ([2021] HKCFI 3172) refusing to grant leave to seek judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 8 February 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Tanzania. He arrived in Hong Kong on 28 June 2016 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 27 September 2016 and raised a non-refoulement claim on 20 March 2017. His claim was made on the basis that he will be harmed or killed by supporters of the ruling political party Chama Cha Mapinduzi as he supported the opposition party Chadema Party.

4. He filed a Form 86 on 14 September 2018 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”). His application was dismissed by DHCJ Bruno Chan on 22 October 2021.

5. The applicant filed a Notice of Appeal on 27 October 2021. The appeal was dismissed by the Court of Appeal on 21 January 2022. The applicant filed a Notice of Motion on 24 January 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

6. In the Notice of Motion, the applicant only stated that he wanted to challenge the decision without giving any specific grounds of appeal.

7. He reiterated the problems he faced in his home country and some procedural history of his case in his written submissions. He also submitted that he wants to go to the Court of Final Appeal because not only his claim was rejected but 99% of the claims of non-refoulement of other applicants were rejected.

Analysis and disposition

8. 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.

9. In the present application, the applicant did not have any viable arguments against the decision of the Court of Appeal. The submissions concerning the alleged problems in his home country have been considered in his appeal to Court of Appeal and the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal.

10. Although the applicant referred to the high rejection rate of applications of this nature, he failed to identify any mistakes or unfairness in the adjudication of the non-refoulement claims with any credible evidence.

11. Besides, the applicant has failed to identify 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).

12. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 24 January 2022.

(Susan Kwan)
Acting Chief Judge of
the High Court

(Lisa Wong)
Judge of the Court of
First Instance

The Applicant (Appellant), acting in person

CACV 484/2021

[2022] HKCA 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 484 OF 2021

(ON APPEAL FROM HCAL NO 1943 OF 2018)

________________________

BETWEEN
	Nguya Adam Iddi	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Lisa Wong J in Court

Date of Hearing: 17 January 2022

Date of Judgment: 21 January 2022

________________________

J U D G M E N T

________________________

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

1. On 22 October 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the decision of the judge on 27 October 2021.

2. The applicant is a national of Tanzania and is 31 years old. He arrived in Hong Kong on 28 June 2016 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 27 September 2016 and raised a non-refoulement claim on 20 March 2017. His claim was made on the basis that he will be harmed or killed by supporters of the ruling political party Chama Cha Mapinduzi (“CCM”) as he supported the opposition party Chadema Party.

The Director’s decision

3. By a Notice of Decision dated 27 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4. Taking into account the low intensity and frequency of the alleged past ill-treatment, the Director assessed that the level of future risk of harm upon the applicant’s return is low. The Director observed that the applicant learned about the identity of the people who burnt down his shop from hearsay information and the applicant admitted it was only his speculation that the callers of the threatening calls were CCM members. Besides, there has never been any physical harm inflicted upon the applicant by CCM members. Thus, the Director found there is no substantial ground for believing that CCM members would seriously harm or kill the applicant upon his return to Tanzania. The Director also considered there is nothing to show that any of the alleged acts against the applicant had been inflicted by or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity of the state. Moreover, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

5. The applicant appealed against the Director’s decision to the Board and attended the hearing before the Board on 23 March 2018. The Board considered the applicant was not a witness of truth because of the numerous inconsistencies, general vagueness and inability to provide any explanation for the differences and the relevant details. The Board further found that the applicant’s multiple exits and entries from and into Tanzania in the past demonstrated that he is of no interest to the authorities or the government of that country. For these reasons, the Board rejected all the applicant’s claims and dismissed the appeal on 7 August 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 14 September 2018 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any grounds for his intended challenge. He did not make further submissions in support of his leave application at the hearing before DHCJ Bruno Chan on 21 September 2021.

The judge’s decision

7. The judge reviewed both the decisions of the Director and the Board, and decided that the applicant failed to show any error of law, procedural unfairness or any failure to apply high standards of fairness in the decisions. The judge concluded that the applicant’s intended challenge does not have any prospect of success and dismissed the leave application on 22 October 2021.

Grounds of appeal

8. In the Notice of Appeal, the applicant only stated that he wants to challenge the decision, without giving any particular grounds for the challenge.

9. In his written submissions, he reiterated the problems he faced in his home country and submitted that the Director and the Board did not correctly consider his claim but did not provide further elaboration or any particulars in this respect. He did not make oral submissions at the hearing of the appeal.

Legal Principles

10. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

11. 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.

Analysis and disposition

12. In the present appeal, the applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in dismissing his leave application. The judge provided detailed reasons for the decision and his decision is well founded.

13. There being no valid grounds of appeal, we dismiss the appeal accordingly.

(Susan Kwan)
Vice President

(Lisa Wong)
Judge of the Court of
First Instance

The Applicant (Appellant), acting in person

[1] [2021] HKCFI 3172

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to 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).

[5] 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.

NGUYA ADAM IDDI v. TORTURE CLAIMS APPEAL BOARD

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