Re Rai Arjun

CACV 505/2020

[2021] HKCA 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 505 OF 2020

(ON APPEAL FROM HCAL 2159 OF 2018)

________________________

________________________

Before: Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 24 May 2021

Date of Judgment: 4 June 2021

_________________

J U D G M E N T

_________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Mr RAI Arjun, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 14 September 2020 refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 24 September 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim[1] (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 23 June 2017 (“Director’s Decision”).

Bases and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 50, is a fear of being harmed or even killed by certain gangsters who extorted money in respect of a contract which the applicant had successfully bid for with others.

3.The circumstances giving rise to such fear have been set out in detail in paragraph 8 of the Director’s Decision and paragraphs 17 to 27 and 47 to 65 of the Board’s Decision and in gist in [2] and [3] of the Form CALL-1 dated 14 September 2019, [2020] HKCFI 2247 (“Form CALL-1”). 

4.Briefly:

(1)  In June 2013, the applicant started a small business as a supplier of construction materials in his home village.

(2)  Back in around 2009/2010, he had joined the Hilleypani Yuba Club (“Club”), which helped villagers to bid for government construction projects.

(3)  In August/September 2013, the applicant and a few other members of the Club including Dhan Singh Rai (“Dhan”) and Hem Raj Rai (“Hem”) were awarded a contract (“Contract”) to pave the section of a road in their village (“Project”).  In securing the Contract, they had outbid certain followers of Ganesh Lama and Chakrey Milan who were notorious gang leaders.

(4)  Shortly after the award of the Contract, Dhan, Hem and other fellow villagers had a fight with some gangsters from the Sindhuli group at a local inn.  The gangsters demanded for the payment to them of commission on the Contract.  After the fight, Dhan called the applicant to urge him to flee as he was named as the leader of the Project and might therefore be kidnapped or even killed by the gangsters if they found him.

(5)  The applicant fled to take shelter at a relative’s place in Imadol, Lalitpur, Kathmandu the following night.  His wife and daughter joined him 3 days later.  Their 2-week stay in Imadol was uneventful as they remained indoor most of the time.

(6)  The applicant left for Hong Kong, without his family as he was the only one targeted, on 17 October 2013. 

(7)  His initial plan was to stay in Hong Kong for only a short time.  However, just when he was about to return to Nepal, Dhan and Hem advised him not to do so as the gangsters were still looking for him and the situation was still heated.

(8)  The applicant did not seek assistance from the police in Nepal as believed that they would only ask him to settle his dispute with the gangsters by himself.

Entry into Hong Kong and lodgment of NRF Claim

5.The applicant arrived in Hong Kong as a visitor on his Nepalese passport on 17 October 2013. He was permitted to stay until 24 October 2013, which was later extended to 29 October 2013.  He overstayed and was arrested by the police on 5 February 2014.

6.As stated in footnote 1 above, the NRF Claim began as a torture claim which was raised by written signification dated 7 February 2014.  Upon the commencement of the unified screening mechanism on 3 March 2014, the Torture Claim was treated and processed as a non-refoulement claim. 

Director’s Decision

7.In processing the NRF Claim, the Director took into account the information provided by the applicant in his Non-refoulement Claim Form dated 10 June 2016 and at the screening interview on 7 July 2016.  The applicant then had legal advice and representation from the Duty Lawyer Service (“DLS”).

8.The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)  First, the alleged risk of harm, if any, from the gangsters upon the applicant’s return to Nepal is low.  The risk was perceived entirely on the basis of hearsay.  The applicant did not personally meet, or directly receive any threats or monetary demands from, the gangsters before he left Nepal.

(2)  Second, the relevant gang leaders and members had been arrested by the police in Nepal and sanctioned.

(3)  Third, the availability of state protection would further lower or even negate the perceived risk (if any).  There is objective country of origin information (COI) showing that the police in Nepal have been taking actions against gangsters who pose a danger to society.

(4)  Fourth, the perceived risk (if any) can be further negated or reduced by the availability of reasonable internal relocation alternatives in Nepal.

Appeal to Board and Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision on 3 July 2017.

10.After a rehearing on 27 July 2018, at which the applicant testified before, and answered questions by, the Board through an interpreter, the Board dismissed the appeal on all the said grounds for non-refoulement protection on 24 September 2018.

11.More particularly, while accepting that the NRF Claim is barely credibly based on an actual event, the applicant failed to establish the singular focus on him by the gangsters, which was strongly doubted by the Board.  The claim that he has become a target for revenge was not accepted.  Also, there were and are alternatives available to the applicant in terms of relocation within Nepal or to India.

Application for leave for judicial review and Judge’s Decision

12.By the notice of application for leave to apply for judicial review (”Form 86”) filed in HCAL 2159/2018 on 8 October 2018, the applicant sought leave to apply for judicial review of the Board’s Decision[6]. The supporting affirmation filed on the same date proposed grounds which the Judge summarised in [8] of the Form CALL-1 as follows:

“(1) lack of legal representation in his appeal before the Board;

(2) that the Board’s decision was never read or translated to him to enable him to better understand his case;

(3) that the Director had adopted a formulaic and biased approach in assessing his claim including assessing the COI as to the overall condition of Nepal and the ineffectiveness of the Nepalese police and the efficiency of the judicial procedures in Nepal;

(4) that the Director and the Board failed to consider the fact that reforms in Nepal would take years to become efficient as the police effectiveness has remained questionable due to corruption in the lower level of the police; and

(5) procedural unfairness in that the hearing bundle provided by the Director for his appeal before the Board was never interpreted to him to assist his appeal to the Board.”

13.After hearing the application in open court, at which the applicant was present and was assisted by a Nepali interpreter, the Judge refused leave.  His reasons can be found in [9] to [17] of the Form CALL-1:

“9.     For his complaint in Ground (1) of not being provided 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 nor 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 367, and Re Zafar Muazam [2018] HKCA 176.

10.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

11.  As for his complaint under Ground (2) of not being explained or translated the Board’s decision for him to have a better understanding of the reasons why his appeal was dismissed by the Board, even if true this cannot per se be accepted as a valid or proper ground to challenge the Board’s decision, and is not reasonably arguable for his application.

12.  Regarding his Grounds (3) and (4), they are just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how and why they applied or were relevant to the facts of his case when he had never sought assistance from the police regards threats from those local gangsters.  As such I do not find either of them reasonably arguable for his intended challenge.

13.  As for his Ground (5) that the documents in his hearing bundle for his appeal before the Board had never been explained or interpreted to him, I note that in fact most of the documents such as his NCF and the Director’s decision had earlier already been made available to him or were familiar to him when he was still represented by DLS, while his NCF was prepared by his lawyer on his own instructions, and that he was assisted by an interpreter during his appeal hearing when he never raised any such issue with the Board over his hearing bundle.  In the circumstances I do not find this ground of his reasonably arguable either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal and grounds of appeal

14.By the notice of appeal filed herein on 23 September 2020, the applicant appealed against the refusal of leave for judicial review.  His grounds of appeal were presented in 8 paragraphs, which can be summarised into the following 2 grounds:

(1)  Ground 1: It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant.

(2)  Ground 2: Notwithstanding his inability to read or write English, after the Director’s Decision, he had not been provided with any language or legal assistance, without which he could not fully understand the decisions that had been made against him, formulate proper grounds for judicial review or grounds of appeal or effectively appear at hearings, much to his disadvantage.  The Judge was unfair in failing to acknowledge or give weight to his language incapability or consider the significance and extent of unfairness to the applicant arising from his lack of legal or language assistance. The applicant requested for the translation and language assistance at the appeal hearing before the Court of Appeal.

15.His skeleton submission dated 12 May 2021 basically reiterated, without usefully adding to, these grounds.

16.The applicant appeared in person at the hearing of the appeal on 24 May 2020.  He had nothing to add to his notice of appeal or skeleton submissions.

Court of First Instance’s role in judicial review in non-refoulement claim

17.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

Ground 1

19.Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how he or his case has not been treated with caution or diligence.

Ground 2

20.It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  Representation at the later screening or legal stages is merit-based.  See 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 Ahmed Syed Rafiq [2018] HKCA 178.

21.In this case, the applicant did already have the benefit of legal representation from the DLS in presenting his case to the Director.  Other than a general complaint, he has not pointed out in what ways he was prejudiced before the Board or the Judge due to his being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

22.As for interpretation services, they are provided at the hearings before the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of his case.

23.In the premises, the applicant did not in the notice of appeal or skeleton submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

24.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, appeared in person