Basnet Sachin Bahadur v. Torture Claims Appeal Board

CACV 360/2021

[2021] HKCA 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 360 OF 2021

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Before:  Hon Chow JA and S T Poon J in Court

Date of Written Submissions:  8 September 2021

Date of Hearing: 25 October 2021

Date of Judgment:  1 November 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the order made by Deputy High Court Judge To (“the Judge”) on 19 July 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 12 November 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 November 2017 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Nepal.  He arrived in Hong Kong on 7 January 2016 with permission to stay as a visitor for one day only.  He overstayed and surrendered to police on 25 January 2016.  He lodged a non-refoulement claim on 27 January 2016.

3.The Applicant’s case is basically that, if he is refouled to Nepal, he would risk being harmed or killed by the Madhesi Forum, an ethnic Indian political party, for refusing to join them.  Details of the Applicant’s claim have been summarised by the Judge at §§4-15 of the CALL-1 Form^[1].

4.By a Notice of Decision dated 10 November 2017, the Director rejected the Applicant’s non-refoulement claims on all applicable grounds: risk of torture,^[2] BOR 2 risk,^[3] BOR 3 risk^[4], and persecution risk^[5] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Board.  On 29 August 2018, the Board heard the appeal.

6.On 12 November 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found that the Applicant lacked credibility and did not produce any evidence or support for his claim other than words.  The Board also found that the Applicant could have relocated and did so without any difficulty. The Board concluded that the Applicant failed to establish torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

THE JUDGE’S DECISION

7.On 30 November 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s Decision. 

8.The Applicant’s main grounds for judicial review were that the Director has failed to provide language assistance to him and the Director has conducted inadequate research about the Country of Origin Information (“COI”).

9.The Judge found that there was no procedural unfairness due to lack of language assistance.  Citing Karamjit Singh CACV 78/2018, the Judge held that a high standard of fairness did not include the provision of interpretation service at any time.  Furthermore, the Applicant contended that he was entitled to language assistance because of his vulnerability as a minor.  However, the Applicant was actually more than 20 years old when he first completed his non-refoulement claim. 

10.As to inadequate research of the COI, the Judge found the Applicant’s allegations to be misconceived.  The Director relied on credible sources for the COI and the Applicant’s doubts were just a bare assertion which did not reflect any procedural unfairness or irregularities.

11.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness in the Board’s Decision.

12.The Judge concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review.

13.Accordingly, on 19 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

14.In his Notice of Appeal, the Applicant alleged that the Judge did not show any cause and the decision was copied from the Board’s Decision.  It is noted that the Applicant does not point to any error in the Judge’s decision or reasoning.

15.In his written submissions, the Applicant repeated the background of his claim that he was a target by the Madhesi Forum.

16.At the appeal hearing, the Applicant indicated that he has nothing to add.

DISCUSSION

17.The Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, risk of harm, state protection, and the viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

18.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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

19.The Applicant has not identified any errors of law, a failure by the Judge to take account of relevant matters already placed before the Court, or shown that the Judge’s decision was  otherwise plainly wrong.

20.For the reasons above, the Applicant has not shown any viable grounds of appeal.

21.We agree with the Judge that the Applicant’s intended judicial review is not reasonably arguable and has no prospect of success.  Leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

The Applicant, unrepresented, appeared in person.

[1] [2021] HKCFI 2084.

[2]This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.