Thapa Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 415/2021

[2021] HKCA 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2021

(ON APPEAL FROM HCAL NO 901 OF 2019)

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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 17 August 2021, Deputy High Court Judge K W Lung (“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 29 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) of 12 April 2017 in respect of his claim on BOR 2 risk[1]. The applicant’s claims for non-refoulement on grounds of torture, persecution and BOR 3 risk had already been disposed of previously.

2.On 30 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 19 October 2021 and Practice Direction 4.1, the applicant should lodge his skeleton argument on or before 15 November 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his skeleton argument, he shall be deemed to waive his right to have an oral hearing and elect to have this appeal disposed of 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.  He came to Hong Kong as a visitor on 6 June 2013.  He overstayed since 12 June 2013 and was arrested by police.  On 4 August 2013, he lodged his torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  As it was not completed before the commencement of the unified screening mechanism (“USM”) on 3 March 2014, his claim was taken to be a non-refoulement claim under the USM.  His claim was made on the basis that if refouled, he would be harmed or killed by the Maoists in his home village because he had once reported their threats to and maltreatment of him and his family to the Nepalese police.

5.By a Notice of Decision dated 29 May 2015, the Director assessed the applicant’s claim on BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.  The applicant appealed the Director’s decision to the Board and the appeal was rejected on 15 March 2017 after an oral hearing.

6.On 24 March 2017 the Director invited the applicant by letter to submit any further materials for consideration of his claim for BOR 2 risk.[5] The applicant did not reply.  On 12 April 2017, the Director determined the claim against him (“the Director’s BOR 2 Decision”). 

7.The applicant lodged an appeal to the Board against the Director’s BOR 2 Decision which is the subject of the intended judicial review application in the present case.  The appeal was heard on 8 February 2019 and by the decision dated 29 March 2019, the Board dismissed the appeal.  The Board found that applicant’s case comprised only of bare assertions and were inconsistent with the Country of origin information (“COI”) [8.7].  The Board did not accept that a handful of alleged assailants would still be interested after 6 years in spending huge resources and manpower to locate him all over Nepal [12]. The Board therefore rejected his evidence and found that he had failed to establish his claim on BOR 2 risk.

Decision of the court below

8.On 2 April 2019, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced the following grounds of relief (as duly summarized by the Judge at [12] of the Form CALL-1):

(1)     He had no free legal representation or language assistance for his preparation of his appeal to the Board.

(2)     He did not receive any letter from the Director inviting him to submit additional facts (if any) regarding BOR 2 claim.

(3)     The Director’s BOR 2 Decision was not interpreted to him.

(4)     The Director was unfair to him because he did not explain what BOR 2 risk meant and there was no screening interview for him on BOR 2 risk.

(5)     The Board’s decision was unfair to him;

(6)     Free legal representation should be provided not only at the screening interview, but also at the proceedings before the Board; and

(7)     The Board’s decision was not interpreted or explained to him.

9.The applicant attended an oral hearing on 30 July 2021.  By the decision dated 17 August 2021, the Judge refused to grant leave to apply for judicial review and the reasons for the refusal were set out at [13] – [22] of the Form CALL-1 as follows:

“13. At the hearing before the Court, he said that he had nothing to say. Everything he wanted to say had been written in his affirmation. He refused to answer the questions put to him.

14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

17. His grounds in support of this application can be summarized as he was not invited to give additional reasons for the BOR 2 risk by the Director; he was not given free legal representation for his appeal and he was not provided with translation or interpretation service for the Director’s Decisions and the Board’s Decision.

18. The Court of Appeal held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage. See Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 [22]; Re Ali Haider [2018] 222 [12]; Re Miah Mohammad Sahin [2020] HKCA 982 [24]

19. The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held at §13:

“…high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant”

20. As to his complaint that he did not receive the Director’s invitation to submit additional ground for his BOR 2 risk, he had the opportunity of making his submissions to the adjudicator when he appeared before the Board. He might also ask the adjudicator the substance of BOR 2 risk himself. This ground fails too.

21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.”

Appeal to this Court

10.On 30 August 2021, the applicant filed his Notice of Appeal against the Judge’s decision made on 17 August 2020 on the following grounds:

“(1) I am not satisfied with the decision given by the Judge. Since the decision was made without looking and considering the relevant issue.

(2)  The Judge has failed to consider the significance and level of unfairness the lack language assistance has on me as a litigant.” 

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.Ground 1 is a vague and general assertion of a blanket nature without particulars.  As had been said repeatedly, general assertions would not be enough to give rise to a viable ground of appeal in a matter of this nature: Re Mizan Sikder [2019] HKCA 20; Re Imbuh Karina Binti Yamroni [2010] HKCA 950.

13.We have carefully considered the materials before us and the Judge’s decision and 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.  Ground 1 has no merit and fails.

14.On ground 2, we note that the court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  During the hearing before the Judge, the applicant was also assisted by a Nepalese interpreter.  It is therefore clear that the applicant was not in any way prejudiced.  Accordingly, ground 2 also fails.

Order

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

The applicant, unrepresented, acting in person