RE MAGAR SURENDRA

CACV 70/2019

[2019] HKCA 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2019

(On appeal from HCAL 1090 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr MAGAR Surendra, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 31 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 15 March 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 34, is a fear of being harmed or even killed for revenge by one Shyam, a former schoolmate of the applicant and a Maoist, and his associates if the applicant should be returned to Nepal.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant lived with his mother in Okhra Village, Dhankuta District, Nepal.

(2)  In the evening on one day in the end of 2003, the applicant and 3 of his friends were intercepted on the road by some armed people whom he believed to be Maoists. The leader of the group was one Ram Bahadur Limbu (“Ram”). Ram was Shyam’s father. They ordered the applicant and his friends to burn down one of the police check posts in the village and threatened to kill them if they did not comply with such order.  Fearing harm from the group, the applicant and his friends did as told and did burn down the police check post with tires and petrol provided by the group.

(3)  After a week, 10 soldiers came to the applicant’s house to arrest him for arson. The soldiers kicked and punched the applicant thereby forcing out of him the information that Ram ordered the attack. The soldiers then left and the applicanthas not been prosecuted for the arson.

(4)  In late 2004, Ram was arrested and publicly executed by the Nepalese army. At Ram’s execution, a soldier announced that the applicant was the informer. 

(5)  After Ram’s execution, in early 2005, Shyam and some armed people whom the applicant believed to be Maoists went to the vicinity of the applicant’s house to search for the applicant.  The applicant fled. He subsequently heard that Shyam had joined the Maoists and was looking for the applicant to revenge his father’s death.

(6)  The applicant moved, in fear, to Dharan and Kathmandu for a short period, during which he heard from his family that the Maoists had come to his house about twice a month to search for him and to threaten his family.

(7)  The applicant did not consider seeking protection from the Nepalese authorities to be an option for him because he was not related to the army. Nor did he feel safe by relocating to other areas in Nepal because the Maoists would eventually locate him through their well-established network.

(8)  The applicant left Nepal to work in Malaysia and Qatar from March 2005 to January 2009 and from March 2009 to July 2013 respectively. He returned to Nepal in January 2009 and stayed in Kathmandu for a month after the employment contract in Malaysia ended. He understood that, after he left, the Maoists still went to his house to look for him. However, he did not seek protection from either Malaysia or Qatar during his stays in those countries.

(9)  In July 2013, he went back to his home village in Nepal.

(10)  In September 2013, some Maoists and Shyam came to his house again to search for him. The applicant managed to flee.  However, he heard that Shyam had evicted his mother and burnt down their house. 

(11)  The applicant then went to stay in Kathmandu for a month and obtained a visa for travelling to Hong Kong and China without any difficulty.

(12)  After the applicant’s arrival in Hong Kong, he was able to contact his mother who tried to avoid the Maoists by moving to his uncle’s house.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant entered Hong Kong on 31 October 2013 as a visitor. He went to the Mainland China on 5 November 2013 and returned to Hong Kong on same day. He overstayed since 13 November 2013.  He surrendered to the Immigration Department on 30 March 2016. He raised the NRF Claim by way of written representation dated 5 July 2016 and lodged his non-refoulement claim form on 17 October 2016.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representatives conducted a screening interview on 24 January 2017 with the applicant who was represented by the Duty Lawyer Service. In support of the NRF Claim, the applicant submitted a letter from the Office of the Village Development Committee of his home village.

5.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The NRF Claim was found to be not substantiated. 

(1)  First, there are no substantial grounds for believing that the applicant would face any real or substantial risk of harm upon returning to Nepal. He had never been hurt by the Maoists who would have had the opportunities to do so had they really intended to harm the applicant. The absence of past ill-treatment indicated that the future risk of being harmed upon his return to Nepal was unlikely to materialise. Nor was there evidence to show that the applicant’s enemies had made intense and sustained efforts to take revenge against him.  The asserted past ill-treatment inflicted upon the applicant by his enemies had not attained a minimum level of severity to warrant non-refoulement protection.

(2)  Second, the problem between the applicant and Shyam was by nature a private and personal dispute. The threats from Shyam were clearly not inflicted for a purpose which had any connection with the interests or policies of the Nepalese state.  There is objective country of origin information (COI) showing that the Nepalese government has taken practical steps to fight against crimes and can provide reasonable protection and assistance to its citizens and punish wrongdoers including Maoists. The availability of state protection would further lower or even negate the level of the perceived risk.

(3)  Third, the danger posed by Shyam could also be lowered or negated by relocation. Reasonable internal relocation alternatives are available to an able-bodied adult with both domestic and overseas working experiences like the applicant.

Appeal to Board and Board’s Decision

6.  The applicant appealed to the Board on 27 March 2017. Hestated in his notice of appeal that Nepal did not have a strong government and it did not provide security to its people. The written rules were not practically implemented in Nepal. There was still violence in Nepal. The conflict between the regions was on going. He was still being searched for by his enemies. They had tortured his mother mentally. He would face danger if he were to be sent back.

7.  The Board conducted a rehearing of the NRF Claim on 27 March 2018, at which the applicant was present and was invited by the Board to clarify, through an interpreter, various matters including the identities of his enemies (whether they were Maoists or just a local gang); how the army subsequently found out about the applicant’s involvement despite the absence of any witnesses to the arson; why the army would openly announce the identity of their informer which would obviously not be conducive to future cooperation between the army and the villagers; how the applicant (who was not present at Ram’s public execution) learnt that the army had announced that he was the informer; and why the letter of the Office of the Village Development Committee of the applicant’s home village made no reference to the applicant’s home being burnt down by the Maoists.

8.  The Board dismissed the applicant’s appeal on all applicable grounds. First, the Board was unable to accept the applicant as a credible witness and could not act on his account based on which he made the NRF Claim. Second, even if the applicant’s account were to be accepted, the NRF Claim would still fail because the elements of each of the applicable grounds had not been satisfactorily established. Third, although it was not strictly necessary for the Board to consider the issues of state protection or internal relocation, the Board agreed with the Director that there is no indication that the Nepalese state would be indifferent or would refuse to provide some form of protection to the applicant and that internal relocation alternative is available and reasonable.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1090/2018 on 13 June 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86 itself did not set out any ground on which the intended review was sought but, as summarised by the Judge at [11] ofthe Form CALL-1 dated 31 January 2019 ([2019] HKCFI 252) (“Form CALL-1”), by the supporting affirmation filed on the same date, the applicant relied upon the following grounds:

(1)  that he was not provided with translation service for the preparation of his appeal;

(2)  that the hearing bundle was in English and he was not provided with translation; and

(3)  that he was not advised as to how to prepare for the appeal.

10.  The Judge’s reasons for refusing leave after an oral hearing can be found in [15]-[20] of the Form CALL-1 as follows:

“The Board’s Decision

15. At the hearing before me, the applicant said that he was assisted by his friend who had explained the Hearing Bundle to him. He understood its contents before the appeal hearing. His friend had also assisted him to prepare the appeal.

16. He confirmed that he had no complaint against the Immigration officer, the interpreter or the Adjudicator.

17. Grounds (1) and (2) fail.

18. As to Ground (3), the Court of Appeal in Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (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. 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.” This ground fails.

19. Having considered the applicant’s submission at the hearing, I consider that the applicant is unable to establish any grounds in support of his application for judicial review of the Board’s Decision.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave for him to judicial review the Board’s Decision.  Accordingly, I dismiss his application.”

Appeal to Court of Appeal and grounds of appeal

11.  By a notice of appeal filed on 14 February 2019, the applicant appealed against the refusal of leave for judicial review on the following grounds:

(1)  The Judge has failed to consider the significance and level of unfairness caused by the lack of language assistance to him as a litigant.

(2)  Whilst he confirmed that he had been assisted by his friend who had explained the bundle to him, what he meant was that the friend had merely told him that “this was the claim form and this was the appeal form”. He was not advised on every piece of information. Consequently, he could not have verified the bundle because he does not understand English.  This put him in a disadvantaged position because without understanding what was going on in his case file, he could not make any complaints even if he wanted to.

(3)  He therefore requested for translation and language assistance so as to acquire a better understanding of his case as this is one of the primary rights of a litigant. He also requested for an oral hearing with an interpreter arranged.

12.  The applicant filed written submission on 3 May 2019, by which he just repeated his said grounds of appeal and further requested for a reasonable period of time to be granted to him in order to make further submission.

13.  The applicant appeared in person at the hearing of the appeal on 3 June 2019. He had nothing to add to his grounds of appeal or written submission save that people were still enquiring about him and asking for his new telephone number and that there was still a danger for him to go back to Nepal.

Court of First Instance’s role in judicial review in non-refoulement claim

14.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

15.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

16.  Neither the notice of appeal nor the applicant’s submission (written or oral) has stated in what ways the judge might have erred in law, failed to take into account a relevant matter or been otherwise plainly wrong.

17.  The applicant merely repeated his complaint about not having been given any language or other assistance in the preparation of his appeal to the Board, including the compilation and the contents of the appeal bundle. 

18.  However, the Board did not dispose of the NRF Claim on paper just by considering the appeal bundle before it. The applicant was given a complete re-hearing before the Board. The Board dismissed the NRF Claim after hearing and questioning the applicant through an interpreter. The Board so ruled because it disbelieved the applicant’s version of the events alleged to have given rise to the risk for which he seeks non-refoulement protection. It came to such a view on the applicant’s credibility and the reliability of his account due to significant gaps therein which the applicant was given the opportunity, but was unable, to satisfactorily explain. 

19.  None of the applicant’s grounds of appeal or submission addresses the adverse findings as to fact made by the Board against him.  The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.

Disposition

20.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.