DIL BAHADUR RAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 242/2023, [2024] HKCA 8

On Appeal From [2023] HKCFI 1833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2023

(ON APPEAL FROM HCAL NO 989 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 25 July 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 1833).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2019 (“the Board’s Further Decision”) dismissing the petition against the decision of the Director of Immigration (“the Director”) dated 20 January 2017 rejecting the applicant’s non‑refoulement claim on the basis of BOR2 risk[1] (“the Director’s Further Decision”).

3.  This appeal was listed to be heard on 5 December 2023. The applicant was directed to lodge two sets of skeleton argument on or before 7 November 2023 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The directions and the warning were communicated to the applicant by the Notice of Hearing dated 19 October 2023.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1. Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants. Non‑compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument. Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of Nepal. The applicant last entered Hong Kong illegally by boat from Shenzhen on 7 November 2007. On the same day, he was arrested by the police. On 11 November 2007, he was detained in Castle Peak Bay Immigration Centre. He raised a torture claim on 22 November 2007, which, with the commencement of the Unified Screening Mechanism, was taken to be a non-refoulement claim. His non-refoulement claim was made on the basis that, if refouled, he would be killed by the Maoists because he used to be a supporter of the Nepal Congress Party (“NCP”) and that he had fled from joining the Maoists in 2007 despite their repeated invitations. Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [3] ‑ [4] of the Leave Decision.

7.  By a Notice of Decision dated 17 December 2014 (“the Director’s First Decision”) and the Director’s Further Decision, the Director rejected the applicant’s non‑refoulement claim. His decisions covered all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4] and persecution risk[5]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

8.  The applicant then appealed against the Director’s First Decision to the Board and attended oral hearings on 14 April 2015 and 22 April 2015. In essence, after considering the evidence, the Board considered that it was not likely that the applicant’s enemies would kill him as they had never physically harmed the applicant. The Board also found that, after considering the Country of Origin information (“COI”), it would be unlikely for the Maoist to still be looking for the applicant after eight years. Accordingly, the Board was not satisfied that the Maoist was still looking for the applicant, and further held that, in any event, internal relocation and state protection would be reasonably available to the applicant. As the applicant’s claim failed on all applicable grounds, the Board dismissed his appeal against the Director’s First Decision.

9.  The applicant then appealed against the Director’s Further Decision to the Board on 28 February 2017 by way of a petition. However, that petition was filed late. On 21 November 2018, as there were fresh allegations in the grounds of appeal, the Board allowed the late filing of the petition. On 20 December 2018, the applicant attended an oral hearing before the Board. Having assessed the evidence, the Board further concluded that the applicant’s allegation that his house was burnt down by the Maoist in 2016 was unlikely and in any event hearsay evidence. The Board found that the applicant’s evidence of the 2016 incident was entirely incredible and that there was no basis to find that the applicant would face a BOR2 risk if refouled. Accordingly, the petition was refused by the Board by way of the Board’s Further Decision.

The Leave Decision

10.  On 11 April 2019, the applicant applied for leave to apply for judicial review against the Board’s Further Decision. As summarised at [16] of the Leave Decision, the applicant raised the following grounds of review against the Board’s Further Decision:

(1)  Misdirection in law – the Board fettered its discretion by disallowing his appeal; error in taking into account that the applicant had not experienced torture in the past to project future risk; failed to apply the correct standard of proof in Decision.

(2)  Procedural impropriety / unfairness – he was not legally represented by the Board; he was not notified by phone of the Board’s Decision; there was no screening for his claim on BOR2 risk; the immigration officer had not gone to his country to realize the situation there before making his decision; failed to make sufficient research in the COI or cheery picked the COI for the Board’s determination or having considered the outdated COI or authorities; failed to call for psychological and psychiatric evaluation reports; failed to take into consideration USHR 2010, USRF 2010 and The International Commission of Jurist (ICJ) “Report on the ICJ Mission to Nepal”, and failed to obtain the requisite documents for the applicant in support of his case; there was no screening process for his claim on BOR 2 risk.

(3)  Irrationality – failed to make finding whether there exists in Nepal a consistent pattern of gross, flagrant or mass violation of human rights; failed to assess state protection in Nepal.

11.  The Deputy Judge heard the matter on 16 January 2023. However, the applicant was absent without prior notice to the Court. The Deputy Judge proceeded to determine his application on paper.

12.  By the Leave Decision, the Deputy Judge refused his application for leave to apply for judicial review. His reasons were set out at [17] ‑ [28] of the Leave Decision:

“17. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

‘13. (1) … …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.’

20. The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. His reasons in support of his claim were found to be fabrications or speculations.

21. The jumble of grounds in paragraph 16 are either general assertions without any evidence in support or irrelevant to his claim. I shall, nevertheless, deal with them below.

22. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’

23. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

‘22. This Court has repeatedly held 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 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’

24. It is unnecessary for the immigration officer to go to his country to understand his situation as he could rely on the COI.

25. As the reasons for the Board to reject his claim are that his evidence were found to be fabrications or speculations and there was no real risk for him to return to Nepal, the other grounds are quite irrelevant to the Board’s findings of the facts. I find that the applicant has failed to raise any valid ground to challenge the Board’s Second Decision.

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

27. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

28. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.”

This Appeal

13.  On 1 August 2023, the applicant filed a Notice of Appeal to appeal against the Leave Decision. In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT GIVE ME JUSTICE. AND SECOND REQUEST IS I MARRIED A HONG KONG GIRL. I NEED SOME TIME FOR VISA.” (sic)

14.  As mentioned above, contrary to the directions made by the Registrar of Civil Appeals on 12 October 2023 and the directions of this Court on 19 October 2023, the applicant failed to lodge any written submissions.

Discussion

15.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

17.  At the outset, although the applicant disagreed with the Leave Decision, nowhere in his Notice of Appeal did he identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. His marriage to a Hong Kong girl and his request for more time for his visa are irrelevant to his non-refoulement claim and not proper grounds of appeal. On this basis alone, his appeal is plainly a nonstarter and must fail.

18.  For the above reasons, we dismiss the appeal.