Re Jyoti Gurung

CACV 185/2020

[2021] HKCA 439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2020

(ON APPEAL FROM HCAL NO. 75 OF 2019)

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Before:  Hon Poon CJHC and Barma JA in Court

Date of Judgment: 1 April 2021

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J U D G M E N T

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The Court:

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 3 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 31 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Nepal.  She last entered Hong Kong on 28 June 2005 to work as a foreign domestic helper.  She overstayed after her contract was prematurely terminated.  She was arrested on 17 December 2007.  She lodged a torture claim on 26 December 2007 which was dismissed by the Director on 7 March 2012.  Her petition against the Director’s decision was dismissed on 26 June 2012.

3.The applicant lodged a non-refoulement claim on 17 February 2017. The applicant’s claim was based on threats from the Maoist party in Nepal.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.By a Notice of Decision dated 20 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.The applicant appealed to the Board.  After a hearing on 9 October 2018, the Board dismissed the appeal on 31 December 2018 (“the Board’s Decision”).

6.At [83] of the Board’s Decision, the Board accepted that she was a member of the Nepali Congress Party which was a party targeted by the Maoist group.  The Board also accepted at [84] that 5 men claiming to be Maoists abducted her for two days and demanded payment.  However, the Board did not accept that the abduction was caused by her involvement with the Nepali Congress Party but found that it was financially motivated ([90]).  At [96] of the Board’s Decision, the Board found that she did not face any real risk from any of the proscribed harms upon her return.  At [103], the Board found that it was not necessary to consider state protection or internal relocation.

The judge’s decision

7.The applicant filed a Form 86 on 9 January 2019 which contained no ground for seeking relief.

8.In her affirmation in support of the leave application dated 9 January 2019, the applicant advanced the following grounds for judicial review against the Board, as summarized by the judge at [12] of the CALL‑1 Form:

(1)  there was no language assistance provided for her – procedural unfairness;

(2)  the Board’s Decision was not fair as it did not address those issues properly and instead just came up with the assessment no more or less [than] a templet basis;

(3)  there was no legal assistance to her for her appeal;

(4)  the hearing bundle was given to her without translation;

(5)  she does not understand the Board’s Decision as there was no translation for her;

(6)  the authority had put too much weight on the Country of Origin Information that does not reflect the true situation in Nepal; and

(7)  the Board’s Decision was far from achieving the high standard of fairness.

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [21] of the CALL-1 Form:

“13. The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

14. I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

15. It is quite obvious that the Board had taken into consideration all of her personal circumstances in the analysis of the evidence. It did not reject all of her evidence; nor did it accept them all. It did not accept that her sons were abducted. It had set out its reasons for the finding. The applicant agreed that it was unfair for her to pass the comments in Ground (2). She said that it was prepared by her friend and she did not really understand it. This ground must fail.

16. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to this case.

17. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] held that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks does not have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration. Ground (3) fails.

18. The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658. Grounds (1), (4) and (5) fail.

19. Grounds (6) and (7) are her opinions without any evidence in support of them. They fail.

20. The applicant fails to show that she has any reasonable chance of success in her proposed judicial review.

CONCLUSION

21. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.”

Grounds for appeal

10.In the Notice of Appeal dated 15 June 2020, the applicant contended that:

(1)  the judge and the authorities did not exercise caution and diligence in handling her case as a self-represented litigant.  It has been procedurally unfair;

(2)  the judge failed to recognize and address the significance of the lack of language assistance.  The judgment was therefore incomplete;

(3)  given the lack of language assistance, the applicant should have been given legal assistance;

(4)  the CALL-1 Form was not read to her by an interpreter and she was deprived of the right to make a full appeal;

(5)  the Director and the Board used a formulaic approach in dealing with the Country of Origin Information (COI); and

(6)  the applicant requests an oral hearing with an interpreter and reserves the right to make further submissions after the CALL‑1 Form was read to her by an interpreter.

11.The applicant agreed by a letter of 15 June 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 29 July 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 24 November 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

12.In relation to the grounds based on the lack of language assistance and lack of interpretation of the CALL-1 Form, we note that the applicant claimed that her friend helped her understand the Board’s Decision (§6 of the notice of appeal).  Further, we note that the applicant was able to provide documents to the court in English in which she identified the alleged errors committed by the judge and made submissions on those alleged errors.  It is clear that either she is reasonably proficient in English or had access to language assistance in the appeal to this court.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

13.The judge has already dealt with the ground for judicial review based on language assistance at [18] of CALL-1 Form.  The ground of appeal based on the lack of treatment by the judge of this ground for judicial review therefore has no merit.

14.In relation to the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

15.As for the remaining grounds of appeal, they lacked particulars and are therefore bound to fail.

16.There is therefore no merit in the appeal and we dismiss it accordingly.

The applicant, acting in person