Re Limbu Kusum

CACV 521/2021

[2022] HKCA 700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 521 OF 2021

(ON APPEAL FROM HCAL NO. 86 of 2021)

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Before:  Hon Chu JA and ST Poon J in Court

Date of Judgment:  30 May 2022

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 November 2021[1] refusing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 28 December 2020 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 30 July 2020 rejecting her non-refoulement claim.

2.The applicant’s appeal was scheduled to be heard on 28 March 2022. The applicant was directed to lodge his written skeleton argument by 28 February 2022 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 26 January 2022 and the Notice of Hearing dated 14 February 2022.

3.The applicant failed to lodge his skeleton argument by the stipulated time, the hearing date was accordingly vacated. We have proceeded to process this appeal on paper based on the available materials.

4.The applicant is a national of India aged 33. She entered Hong Kong on 25 March 2018 and was given permission to remain to work as a domestic helper for two years. On 25 March 2020 when she applied for extension of stay at the Immigration Department, she admitted she had never worked for the employer named in the contract and obtained her identity card by falsely stating she was a domestic helper. She was convicted and sentenced to four months’ imprisonment for (i) breach of condition of stay; and (ii) furnishing false particulars to the registration officer. In April 2020, she raised a non-refoulement claim.

5.The applicant’s claim is based on fear of being harmed or killed by a group of Marxist followers. Her claim was set out in detail in the Director’s first decision at [12] and the Board’s decision at [6], and summarised by the Judge in [1] and [2] of the Form CALL-1.

6.In gist, the applicant claims that the Marxists are a group of rebels who fight for the independence of the West Bengal State in India, and they have resorted to acts of violence against the locals. She said they repeatedly came armed with knives to damage the village houses, including her family home, and threatened her and her fellow villagers to leave the village or they would harm or kill them. After she came to Hong Kong, her parents had informed her that the attacks had continued, and on one occasion her parents were injured by the Marxists.

7.By his decision dated 30 July 2020, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 3 risk[4] and BOR 2 risk[5] grounds.

8.The applicant appealed the Director’s decision to the Board, and waived her right to an oral hearing. By its decision dated 28 December 2020, the Board dismissed the appeal. In summary, the Board pointed out that as it did not have the opportunity of questioning and hearing from the applicant, it had not been able to establish details of key aspects of her claims. The Board resorted to the available country condition information (“COI”). It considered that the applicant could have been referring to the Maoists, although she called them Marxists, and that the Maoist insurgency activities had affected the applicant’s homeland. The Board however found the overall picture of the applicant’s interactions with the rebel group to be vague and self-contradictory, and that admittedly much of what she said were learned from others. It concluded that the applicant had not established the facts she asserted. It was further of the view that state protection is reasonably available which would reduce or negate any risk of harm. The Board concluded that the applicant failed to make out a case for non-refoulement protection under all applicable grounds.

9.On 26 January 2021, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. She did not give any specific ground for seeking relief in either the Form 86 or the supporting affirmation.

10.The Judge dealt with the application at an oral hearing attended by the applicant. For reasons set out in [7] to [11] of the Form CALL-1, the Judge refused to give leave for applying judicial review and dismissed the application:

“7. On 26 January 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in which she just stated that the Board reached the wrong decision in assessing her non-refoulement claim, and that the decision was unfair and unreasonable but without providing any details or particulars or elaboration as to how it was so, nor was she able to do so or to put forth any proper ground for her intended challenge at the hearing of her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

8. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

9. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

10. 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.

11. 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 her leave application.”

11.The applicant filed the notice of appeal on 23 November 2021, accompanied by an affirmation, which set out two grounds of appeal as follows:

(1)  The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The Judge failed to provide detailed reason in support of his decision.

12.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

14.The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

15.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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant have no merits. This is because the applicant did not raise state acquiescence or involvement in her grounds for applying for judicial review, and the Judge’s decision did not refer to the issue of state acquiescence. It is also apparent from the Form CALL-1 that the Judge had given sufficient reasons for refusing to give leave to apply for judicial review. Accordingly, the two grounds of appeal stated in the affirmation are unarguable.

17.In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions. We agree with the Judge that the intended judicial review has no reasonable prospect of success and that leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.