Tulachan Sabina v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 403/2021

[2021] HKCA 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2021

(ON APPEAL FROM HCAL NO 463 OF 2021)

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Before: Hon Kwan VP and Yuen JA in Court

Date of Judgment: 24 December 2021

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J U D G M E N T

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

Introduction

1.On 10 August 2021, Deputy High Court Judge P. Li (“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 26 March 2021.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 22 July 2020.

2.On 20 August 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.Pursuant to the directions of the Registrar of Civil Appeals given on 21 September 2021 and Practice Direction 4.1, the applicant should lodge her skeleton argument on or before 15 November 2021.  She failed to do so.  The Registrar further directed that in the event the applicant failed to lodge her skeleton argument, she shall be deemed to waive her right to have an oral hearing and elect to have this appeal disposed on paper.  As it is appropriate to do so, we have proceeded to consider this appeal on paper based on the available evidence.

Background

4.The Applicant is a national of Nepal.  She came to Hong Kong on 12 May 2018 and was permitted to remain in Hong Kong as a dependant for 12 months.  She left Hong Kong for a short while and returned to Hong Kong on 13 May 2019.  The following year, she was convicted of using a false instrument and sentenced to six months’ imprisonment.

5.On 14 May 2020, she raised her non-refoulement claim on the basis that if refouled, she will be harmed or even killed by her father as she intended to divorce her husband, to which her father objected as divorce was considered as a shameful matter in Nepalese culture.  The factual background of this case is succinctly summarized by the Judge in [2] to [6] of the Form CALL-1 ([2021] HKCFI 2319)

6.By a Notice of Decision dated 22 July 2020, the Director assessed the applicant’s claim on all applicable grounds on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against her.

7.The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 22 February 2021 and in the decision dated 26 March 2021, the Board rejected the appeal/petition and confirmed the Director’s decision.   On the applicant’s evidence that she was only slapped once by her father prior to her marriage and the death threat from her father was only related to her by her friend while she was detained by the Immigration Department, there was no evidence that her father would carry out the threat [20] – [23]; in any event, the dispute with her father was private and personal in nature without any state element [25]; she could obtain assistance from the police [30] – [32]; and even on her own case, the harm she suffered had not attained the minimum level [35]; thus her non-refoulement claim failed on all applicable grounds. 

Decision of the court below

8.On 31 March 2021, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  In her supporting affirmation, she advanced the following grounds of relief:

(1)     She is a genuine non-refoulement claimant and she would face risk of harm and torture if refouled. 

(2)     The Director reached a wrong decision and rejected her claim without any proper inquiry and careful understanding of her situation.

(3)     She would be killed by her enemies and her problems are getting more life-threatening.  She had no choice but to escape to Hong Kong.

9.The applicant attended an oral hearing on 8 June 2021.  By the decision dated 10 August 2021, the Judge refused to grant leave to apply for judicial review and the reasons for the refusal were set out at [13] – [15] of the Form CALL-1 as follows:

“13. In judicial review, this court is to decide whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

14. The evidence indicated that the applicant was not ill-treated by her father. Nor was she under any severe mental suffering. She failed to establish any real risk of harm which warranted protection under the USM. I agree with the conclusion of the TCAB.

15.  In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.”

Appeal to this Court

10.On 20 August 2021, the applicant filed her Notice of Appeal against the Judge’s decision made on 10 August 2021 on the following grounds:

(1)     The Director and the Board had not weighed or realised the gravity of her circumstances and she should be given an opportunity to plead her case, in particular: (a) she is a genuine non-refoulement claimant; (b) the Director reached a wrong decision and rejected her claim without any proper inquiry and careful understanding of her situation; and (c) she would be killed by her enemies and her problems are getting more life-threatening.  She had no choice but to escape to Hong Kong.

(2)     The court and authorities did not exercise caution and diligence in handling her case as a self-represented litigant.

(3)     The Judge has failed to consider the unfairness and impact on her case for the lack of legal assistance.

(4)     The decision had the effect of finally disposing of her non-refoulement claim and it has significant implications on her substantive right not to be subject to torture and her right to non-refoulement protection.

(5)     The Adjudicator acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.

Legal principles

11.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.Grounds 1, 2, 4 and 5 are against the Director’s and the Board’s decisions.  As explained, this Court would only examine the Judge’s decision in light of the grounds advanced by the applicant and would not examine the decisions of the Board and the Director as if it were a fresh application for judicial review.   

13.In any event, the Board rejected the applicant’s claim for non-refoulement protection on the ground that even on the applicant’s own account of events, she only suffered minor injury from her father in a personal matter.  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.  We found no such ground in this case.

14.Turning to ground 3, this had not been raised before the Judge.  In any event, it is trite 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 prescribes that a non-refoulement claimant is entitled an absolute right to free legal representation at all stage of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

15.Furthermore, the applicant was legally represented before the Director.  Although she had no legal representation before the Board and the Judge, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, ground 3 also fails.

16.Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

17.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, acting in person