Saru Gaman Singh v. Torture Claims Appeal Board

CACV 86/2022

[2022] HKCA 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 86 OF 2022

(ON APPEAL FROM HCAL NO 2677 OF 2018)

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Before:  Hon Chow JA and Ng J in Court

Date of Judgment:  20 September 2022

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.On 21 February 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge Bruno Chan (“the Judge”) on 15 February 2022 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board (“the Board”) dated 4 August 2015 and 15 November 2018. The Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 12 December 2014 and 25 January 2017.

Background

2.The Applicant is a national of Nepal. He entered Hong Kong illegally on 12 April 2009 and surrendered to the Immigration Department on 21 April 2009. He raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to Nepal, he would be harmed or killed by members of the Communist Party of Nepal (Maoist) (“Maoist”) for being suspected of having provided information to the Nepali government against them. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 12 December 2014 (“Notice of Decision”) and a Notice of Further Decision dated 25 January 2017 (“Notice of Further Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (together, “Director’s Decisions”).

4.The Applicant appealed the Director’s Decisions.

5.On 4 August 2015, the Applicant’s appeal against the Notice of Decision was dismissed by the Board (“the Board’s First Decision”).

6.In the Applicant’s appeal against the Notice of Decision which dealt with his alleged torture risk, BOR 3 risk, and persecution risk, the Board found from the relevant Country of Origin Information (“COI”) that the situation in Nepal had significantly changed with the ending of the Maoist insurgency in 2006 and the peace accord reached between the Nepali Government and the Maoists. The Maoists became a legitimate political party in the Nepali Parliament and there was simply no longer any basis or reasons for there to be any adverse interest in the Applicant after all these years, or of any risk of any harm from anyone to the Applicant upon his return to Nepal. In any event, if necessary, reasonable internal relocation was available for him to move safely to other areas away from his home district without any risk of being located. Accordingly, his claim for non-refoulement protection based on torture risk, BOR 3 risk, and persecution risk was rejected.

7.Subsequently, the Director on his own initiative invited the Applicant to submit any additional facts relevant to his non-refoulement claim on all applicable grounds, including BOR 2 Risk. The Applicant failed to respond. Hence, the Notice of Further Decision dated 25 January 2017 which also rejected the Applicant’s BOR 2 Claim.

8.On 15 November 2018, the Applicant’s appeal against the Notice of Further Decision was dismissed by the Board (“the Board’s Second Decision”). In his appeal against the Notice of Further of Decision, the Board found that the Applicant had failed to establish BOR 2 risk in the absence of any relevant additional facts or evidence.

9.Accordingly, the Board confirmed both the Director’s Decisions.

The Judge’s decision

10.On 26 November 2018, the Applicant filed his Form 86 against the Board’s Second Decision. Altogether nine grounds of Review had been put forward by the Applicant and they were examined by the Judge in his Decision.

11.On 15 February 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“13. These [nine grounds] are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Adjudicator misdirect himself on the law of torture when even on the Applicant’s own case that he had never been tortured by anyone before, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

14. As for the Applicant’s complaints of not being provided with legal representation or oral hearing for his BOR 2 Claim either before the Director or the Board, for the former the Court of Appeal has already held that neither the high standards 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 torture claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to legal representation at all stages 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.

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17. In the Applicant’s case, as already noted above, the Board had earlier already in its first decision rejected his claim essentially on its finding of no evidence of any direct threats ever made to him, and more significantly of the significant changes to the political situations in Nepal since he left the country for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 48 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and given the limited threshold of the BOR 2 ground that the Applicant’s claim even on his own case simply does not engage the BOR 2 Risk, and in the absence of any error of law or procedural unfairness in his appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board on his BOR 2 Claim, or for that matter on his claim under any of the applicable grounds.

18. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s 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.

19. 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.”

12.Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s application.

This Appeal

13.In his Notice of Appeal dated 21 February 2022, the Applicant requested to set aside the Order dated 15 February 2022 by the Judge and that leave to apply for judicial review be granted.

14.In his grounds of appeal, the Applicant stated that (1) the Judge was wrong in law in holding that there was no state acquiescence or involvement; (2) the Judge failed to provide detailed reasons in support of his decision; and (3) the COI was ignored while preparing the Decision dated 15 February 2022. The Applicant also referred to “the Affirmation pages for the grounds of Appeal” in his Notice of Appeal. In his affirmation dated 21 February 2022, the Applicant simply repeated (1) and (2) above as his grounds of appeal without further elaboration.

15.The Applicant has failed to lodge a skeleton argument in support of his appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, he is deemed to have waived his right to have an oral hearing of the appeal, and the appeal shall be considered on paper only.

Discussion

16.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)).

17.The 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: Re Kartini [2019] HKCA 1022.

18.There are no merits in any of the Applicant’s 3 grounds of appeal. Since the Applicant has not raised any viable grounds of appeal against the Judge’s Decision dated 15 February 2022 in his Notice of Appeal or supporting affirmation, his appeal has no merits and is dismissed with no order as to costs.

The Applicant, acting in person