Re Tamang Shanti

CACV 221/2020

[2020] HKCA 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 221 OF 2020

(ON APPEAL FROM HCAL 2071/2018)

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Before:  Hon Lam VP and G Lam J in Court

Date of Hearing:  9 December 2020

Date of Judgment:  15 December 2020

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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):

Introduction

1.On 15 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 June 2017 rejecting the applicant’s non-refoulement claim.

2.On 26 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is a Nepalese national.  She arrived in Hong Kong on 27 June 2015 and was permitted to stay as a visitor until 28 June 2015.  She did not leave Hong Kong and has overstayed since 29 June 2015.  The applicant surrendered to the Immigration Department on 17 August 2015, and lodged a non-refoulement claim on 23 October 2015. 

4.The applicant’s claim was based on the fear that, if she returned to Nepal, she would be harmed or even killed by her husband’s former colleague and/or their clients due to monetary disputes.  The factual background was succinctly summarized by the Judge in [2] – [7] of the Form CALL-1 ([2020] HKCFI 1131).

5.By Notice of Decision dated 28 June 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 21 May 2018.  The Board found that the applicant’s claims were not credible and that there was no real risk of harm.  The Board also considered that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 7 September 2018 on all the applicable grounds.

Decision of the court below

7.On 28 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her affirmation in support of her Form 86, she raised a number of grounds for relief, which are set out at [12] of the Judge’s decision, infra.

8.A hearing was held on 16 January 2020 at which the applicant attended in person before the Judge.  On 15 June 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [12] – [19] of the Form CALL-1 ([2020] HKCFI 1131, HCAL 2071/2018) as follows:

“ 13.  On 28 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward various complaints for her intended challenge which may be summarized as follows:

(1)  procedural impropriety/unfairness in their failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(2)  irrationality in their failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(3)  procedural unfairness in their failure to evaluate or make finding of fact as to whether there exists in Nepal a consistent pattern of gross flagrant violation of human rights before concluding that she left her home country due to a small life threat;

(4)  irrationality in their failure to take into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(5)  procedural impropriety in that they ignored the overwhelming evidence of the violence towards the minorities searching for unrealistic silver lining that their decisions betray bias and formulaic approach in unfairly assessing the danger to her life which was clearly calculated to reject her claim; and

(6)  procedural unfairness in that the hearing bundle was provided to the Applicant for her appeal before the Board without first translating or interpreting to her those documents in the bundle which were all in English.

13.  These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to assess the human rights situation in Nepal when her claim arose from a private business dispute between her husband and his co-worker and customers. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14.  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 or her 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.

15.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her without first translating the documents or interpreting them to her before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English of which she did not understand.

16.  I note however that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing during which she was assisted by an interpreter that she never raised any such issue to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17.  Essentially her claim was rejected by the Board on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17-36 its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  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.”

Appeal to this Court

9.On 26 June 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  Her main grounds of appeal were that the Judge did not exercise caution and diligence in dealing with her as a self-represented litigant, and that inadequate legal and language assistance, especially the lack of translation of documents in the court and Board proceedings, was procedurally unfair.

10.The applicant also said in her Notice of Appeal that the Director should be highlighting those parts of the COI that corroborated her claim. 

11.On the same day that she filed her Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

12.On 25 November 2020, the court received the applicant’s written submissions.  In those submissions the applicant further elaborated on her argument on legal and language assistance, i.e. that English is not her first language and that she is unable to understand legal jargon without legal assistance.  Thus, she argued, she was unable to fully understand her case in court or before the Board, which deprives her of the right to a proper appeal.

13.The applicant also submitted that although the Director did not make an adverse finding as to her credibility, the Board had done so.  She said it was unfair for the Board to do so.

Legal principles

14.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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; and

(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

15.The main point raised by the applicant to support her contention of procedural unfairness is lack of legal and language assistance.

16.The applicant was legally represented and provided with language assistance on her claim before the Director.  An interpreter was provided at the Board hearing.  As the Board’s decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with her documentary evidence (which she previously presented to the Director), it is difficult to see how the level of legal or language assistance provided, in fact resulted in procedural unfairness.

17.At the hearing before the Judge, an interpreter arranged by the court providing interpretation in the Nepali language was present.

18.There is no suggestion that there were any inaccuracies in the interpretation before the Board and the court hearing below.

19.As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

20.All the documents filed in the court proceedings were written in English language.  The applicant obviously had language assistance to enable her to prepare these documents.

21.It is clear from these documents that those assisting her in the preparation of the court documents are at a level of sufficient sophistication and knowledge to properly digest the Board’s decision in advancing the matters set out in her affirmation of 28 September 2018, her Notice of Appeal of 26 June 2020 and her skeleton submissions of 25 November 2020.

22.Whilst we accept that there are some legal jargons used in the Board’s decision, we cannot accept the assertion that the applicant did not have any idea as to why the Board rejected her evidence since in that respect the Board did not use any technical language in recounting her evidence and explaining its finding against her credibility. With the assistance of those helping her to prepare the court documents, she should be in a position to respond to those reasons.

23.In our judgment, if the applicant has good ground for contesting the reasons provided by the Board, she did have the means to advance such ground in challenging the Board’s finding in that respect.

24.However, in all the documents lodged by her in these proceedings, we cannot find any ground to warrant intervention by the court in accordance with the principles discussed above.  

25.In the circumstances, the applicant’s argument on procedural unfairness is without merit.

26.As for the argument that the Board was unfair in making an adverse finding on the applicant’s credibility, the Board’s process is by way of rehearing.  Thus the Board was entitled to examine the matter afresh and the Director’s findings did not tie the hands of the Board in the assessment of credibility.  The applicant’s argument that the Board’s finding was thereby unfair has no merit.

27.In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  The Board also found that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  For the reasons given above, we do not find any public law ground to warrant such interference.

28.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

29.For these reasons, this appeal is dismissed.

The applicant appearing in person