Re Rai Subas

CACV 298/2018

[2018] HKCA 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2018

(ON APPEAL FROM HCAL 880/2017)

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J U D G M E N T

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

1.This is an appeal from the decision of Deputy High Court Judge Bruno Chan dated 22 June 2018 ([2018] HKCFI 1377) refusing to grant leave to the applicant to apply for judicial review. The intended application for judicial review was against the decision of an adjudicator of the Non-Refoulement Claims Petition Office dated 8 November 2017 upholding the decision of the Director of Immigration rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1].

Background

2.The applicant is a national of Nepal.  He entered Hong Kong on 6 July 2013 with a permission to remain as a visitor.  He was arrested by the police for overstaying on 27 October 2013.  He lodged a torture claim on 29 October 2013.  His torture claim was taken to be a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

3.The applicant’s claim was based on the alleged fear that, if returned to Nepal, he would be seriously harmed or killed by two Maoists because of his political affiliation.  The background facts of the case were summarized in [2] – [4] of the CALL-1 form.

4.By a notice of decision dated 28 May 2015 (“the Director’s First Decision”), the director assessed the applicant’s claims on the BOR 3 risk[2],the persecution risk[3], and the torture risk[4], and determined the said risks against him.

5.The applicant appealed to the Torture Claims Appeals Board against the Director’s First Decision.  After hearing the applicant on 4 August 2016, the board dismissed the appeal on 27 February 2017 (“the Board’s First Decision”).  The board found that the applicant was not under any substantial risk of harm, and it was found that state protection was available and internal relocation was viable.

6.By a letter dated 28 February 2017, the director invited the applicant to submit additional facts that would be relevant to the assessment of his BOR 2 risk.  As no reply was given by the applicant, the director proceeded with assessing the applicant’s BOR 2 risk based on the materials already lodged for his non-refoulement claim.  By a notice of further decisiondated 20 March 2017 (“the Director’s Second Decision”), the director assessed the risk against the applicant.

7.The applicant petitioned to the board against the Director’s Second Decision.  In the notice of appeal/petition, in addition to stating that he did not receive the director’s invitation in time, the applicant merely repeated the matters already canvassed in the Director’s First Decision and the board’s decision.  As the applicant’s case was the same as the one beforethe board at the oral hearing, the adjudicator did not find it necessary to arrange an oral hearing for the applicant’s petition.  Having considered the case, the adjudicator did not find the applicant to be successful in establishing a case under the BOR 2 risk.  The petition was dismissed on 8 November 2017 (“the Board’s Second Decision”).

The judge’s decision

8.On 14 November 2017, the applicant applied to the court for leave to apply for judicial review.  As mentioned earlier, the intended application for judicial review was against the Board’s Second Decision.  While the form 86 contained no ground for seeking relief, the applicant advanced the following grounds in his supporting affirmation dated 14 November 2017:

(a)  lack of legal representation throughout his appeal/petition before the board;

(b)  lack of assistance for translating his non-refoulement claim form;

(c)  wrongful exercise of case management power by the board for ignoring the new facts regarding the attack on his family and party members; and

(d)  lack of fair hearing for not requiring the attendance of the director and for not arranging an oral hearing and failing to given proper explanation for the determination of his BOR 2 risk.

9.The judge held an oral hearing on 27 April 2018.  After hearing the applicant, the judge refused to grant leave to the applicant to apply for judicial review.  The judge’s reasons in refusing leave were set out in [12] – [18] of the CALL-1 form as follows:

“ 12. For his complaint in ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 not the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already has the benefit of legal representationhis case to the Director, and was able to testify and to make his ownrepresentation in his two appeals to the Board without any difficulty,and I do not find anything amiss arising from the lack of legal representation in his appeal process.

14. As for ground (2) in which the applicant complains about not being provided a translation of his NCF so that he could find out if the interpreter has translated the basis of his claim properly,it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to show that the basis of his claim was indeed incorrectly presented, this ground is simply speculative and of no merit.

15. Regarding his complaint in ground (3) of the Board ignoringnew or additional facts of attacks on his family and members of his party, the applicant has not provided any particulars or specifics of any such additional facts, and that as clearly recorded in the Board’s second decision, there was simply no new or additional facts submitted by the applicant for the Board’s consideration other than a repetition of his claim as before. There is simply no basis for his complaint of the applicant.

16. As for his complaints in ground (4) of first not requiring the attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how the applicant could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.

17. As for not being provided with another oral hearing before the Board for his claim relevant to BOR 2 Risk, as the Board explained in its further decision, given the fact that the applicant did not provide any additional facts and that he merely repeated hisclaim as before in his appeal, the Board did not see any necessity or justification to schedule for another oral hearing in addition to the one held earlier on 4 August 2016. In fact even some six months later in his leave application now before me, the applicant did not submit any additional facts relevant to his claim under BOR 2 Risk, and I do not find anything amiss arising from the Board not scheduling another oral hearing in the applicant’s second appeal to the Board.

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

10.The applicant filed a notice of appeal on 6 July 2018. The grounds of appeal set out in the notice are as follows:

“ 1. I could not respond to the BOR 2 letter because I could not understand the content and was not advised on what BOR 2 means.

2. Without the proper language assistance, I could not respond to the letter promptly and this should not be used against me.

3. Furthermore, I did not receive any legal representation for my BOR 2 claim, yet I was given legal representation for the first 3 grounds of USM claim for the Immigration’s determination for my all then applicable grounds. I do not understand why there has been such a difference.

4. I still believe it is procedurally unfair for the Board to not arrange another oral hearing relevant to the BOR 2 risk, as I have explained previously that I do not have the resources or means to understand the significance of BOR 2 risk.

5. I hereby request for an oral hearing with legal and language assistance provided to me.”

11.By a letter dated 13 July 2018, the applicant consent to this appeal being heard by a two-judge court.

12.The applicant lodged his skeleton submission on 5 October 2018.  In it, the applicant simply repeated the grounds of appeal already stated in the notice of appeal.

13.We heard the appeal on 9 November 2018.

General principles

14.Before we address the grounds of appeal, we would reiterate general propositions that we have been stated in a number of cases of this nature recently (see, eg, Re Tutul [2018] HKCA 552 at [15]; Re Hossain Shahbaz [2018] HKCA 601 at [10]; and Re Morol Rana [2018] HKCA 617 at [13]):

(a)  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 byway of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(b)  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.  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.

(c)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court ofFirst Instance and for which leave has not been sought within time.

(d)  Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e)  In an appeal against refusal of leave to apply for judicial review innon-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.

Discussion

15.As mentioned, in this application for judicial review, the decision under challenged was the Second Decision.  The applicant was unable to challenge the board’s First Decision (such challenge would in any event be grossly out of time).  In such circumstances, as the director advised the applicant in his letter dated 28 February 2017, the board’s assessment in its First Decision in respect of the applicant’s BOR 3 risk, the persecution risk, and the torture risk remains binding on the applicant. 

16.On the facts of his case, the applicant did not provide any additional basis for advancing a case on BOR 2 risk independent of his case on BOR 3 risk, the persecution risk, and the torture risk.  In such context, theassessment of the risk of harm for BOR 2 must be the same as BOR 3 and other heads of claim considered in the First Decision.  In particular, the findings on risk of harm, state protection and internal relocation equally apply.

17.As held by this Court (Lam VP and Barma JA) in Re Gurjant Singh [2018] HKCA 467, in the absence of new and additional materials or extraneous considerations relevant to BOR 2 risk which had not been canvassed before, it is open to the Board to decide the second appeal based solely on BOR 2 risk without any oral hearing.

18.The arguments relied upon by the applicant in this appeal are merely regurgitation of the arguments already advanced before and they had been duly and correctly rejected by the judge.  The applicant failed to identify any legal error in the judge’s analysis. 

19.Having considered the materials available before us, as well as the submissions of the applicant, we are of the view that the judge has applied the correct legal principles and his observations are justified.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

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

The applicant appearing in person