Re Hikmat Tulachan

CACV 334/2018

[2018] HKCA 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 334 OF 2018

(ON APPEAL FROM HCAL NO 495 OF 2017)

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Before: Hon Lam VP, Barma and Zervos JJA in Court

Date of Judgment: 29 November 2018

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 12 July 2018 refusing leave to the applicant to apply for judicial review. 

2.Due to the non-compliance with an unless order, this appeal (which was originally listed for 7 November 2018) is processed on the papers based on the materials already lodged according to the practice adopted by this Court.  See Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.  This is our judgment.

Background

3.The applicant is a national of Nepal.  He entered Hong Kong on 27 June 2013 and was permitted to remain as a visitor until 2 July 2013.  He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 20 October 2015 and lodged a claim for non-refoulement protection on 22 October 2015. 

4.The applicant’s claim was based on the fear that, if he was repatriated to his home country, he would be accused of being involved in a murder of a football player of a rival football club.  The applicant claimed that the deceased had close ties with a Maoist politician and that the deceased’s family would harm him upon his return.  The facts of this case were summarized by the judge in paragraphs 7 to 9 of the CALL-1 Form dated 12 July 2018, which we do not propose to repeat here.

5.The Director of Immigration (“the Director”) decided against the applicant’s claim on 25 April 2016.  The decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].  By a Notice of Further Decision dated 18 May 2017, the Director also assessed the BOR 2 risk^[4] in respect of the applicant and determined the risk against him.

6.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  An oral hearing was held on 8 May 2017, and was adjourned to 13 June 2017 pending the Director’s assessment of the applicant’s BOR 2 risk. Having considered the lack of identity of the deceased, the obscurity created by different accounts of events provided by the applicant, and the illogical scenarios portrayed by the applicant, the Board did not accept the applicant’s account regarding the murder of an unidentified football player, the applicant’s imputed involvement in it, and the political connection of the deceased.  Nor did the Board find any evidence suggesting the involvement of the Nepalese authorities in the alleged case.  The Board dismissed the applicant’s appeal on 26 July 2017.

The judge’s decision

7.On 8 August 2017, the applicant applied to the court for leave to apply for judicial review.  The intended judicial review was in respect of the decision of the Board.  While the Form 86 contained no grounds for seeking relief, the applicant set out the following grounds in his affirmation in support of the application:

(1)   the Board failed to carry out sufficient research and inquiry into the Country of Origin information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2)   the Board cherry-picked COI information and relied on outdated COI;

(3)   the Board failed to evaluate and make a finding as to whether Nepal shows a consistent pattern of violation of human rights;

(4)   the Board failed to analyse state protection in Nepal.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5)   the Board took into account incorrect facts and failed to give weight to facts favorable to the applicant. There were no particulars for this ground;

(6)   the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7)   the Board applied incorrect standard of proof.  There were no particulars for this ground; and

(8)   the duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground.

8.The applicant also furnished the following particulars for some of the above grounds for seeking relief:

(1)   the hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the Board and therefore with insufficient time for him to properly prepare for the hearing.  The applicant was confused at the hearing and the board wrongly concluded he was not credible;

(2)   the Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to his home country;

(3)   the Board made a decision on BOR 2 risk even though this part of the claim was not screened or judged by the Director.

9.Upon the request of the applicant, oral hearings were held on 8 January 2018 and 23 February 2018, where the applicant was absent at the former hearing.  After giving due consideration to the decision of the Board, the judge gave the following reasons in refusing leave at paragraphs 15 to 22 of the CALL-1 Form:

“15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

17. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did not consider COI because of her finding the applicant was not a genuine claimant. These grounds are not arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this ground.

19. The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that:

‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

20. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is inaccurate. The first appeal hearing was held on 8 May 2017. The Director rejected the applicant’s BOR 2 risk claim afterwards, on 18 May 2017 so the adjudicator of the TCAB adjourned the appeal to the 13 June 2017 to ensure the applicant had a fair rehearing to cover all applicable grounds including his BOR 2 risk.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

The appeal

10.On 24 July 2018, the applicant filed a Notice of Appeal, together with his affirmation in support. In the notice, the applicant referred to his affirmation for the grounds of appeal where he complains that the judge: (1) was wrong in law in holding that there was no state acquiescence or involvement; and (2) failed to provide detailed reason in support of her decision.

11.In an attached exhibit to his affirmation, the applicant merely repeats the information and grounds in support of his application for leave to apply for judicial review, although he adds a further ground that the Board misdirected itself on the law when assessing the risk of torture in the future.

General principles

12.Recently, in a number of cases, we have highlighted the general propositions for determining an appeal for non-refoulement cases.  See Re Morol Rana [2018] HKCA 617 at paragraph 13; and Re Shrestha Mahesh [2018] HKCA 619 at paragraph 14.  

13.In summary, a non-refoulement claim is decided by the Director whose decision can go on appeal to the Board.  They are the primary decision-makers whose role it is to assess and determine the merits of the claim.  The role of a court in a judicial review of the Board’s decision is not to provide a further avenue of appeal.  It is not concerned with the merits of the Board’s decision, but rather with the legality of it.  While the court will adopt an enhanced standard in scrutinising non-refoulement claims, it will not usurp the role of the primary decision-makers.

14.An appeal against the refusal of leave to apply for judicial review of the Board’s decision is not an occasion for repeating arguments advanced and rejected by the court or for running arguments which could and should have been raised before the court but were not.  The Court of Appeal would only examine the decision of the court in light of the grounds advanced by the applicant and will only reverse the decision if it can be demonstrated that the court made errors of law or failed to take account of relevant materials already placed before it or was otherwise plainly wrong.  It is not the role of the Court of Appeal to examine the decision of the Board afresh.

Discussion

15.In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility.  After having examined and scrutinized the materials before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

16.In this appeal, the applicant did not put forth any viable grounds to reverse the judge’s decision.  There is no basis for suggesting that the judge did not give adequate reasons. Given the facts of this case and the findings of the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case.  See Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

17.The applicant’s arguments set out in the exhibit were only a regurgitation of the arguments previously advanced, and duly rejected by the judge.  As already stated, this is not a proper basis for an appeal in a case of this type.

18.Having considered the materials before us, we cannot find any ground that justifies a reversal of the judge’s decision.  We agree with the judge that leave to apply for judicial review should be refused.

19.It follows from what we have said that we dismiss the appeal.

The applicant acting in person.