RE GHARTI CHITRA BAHADUR

CACV 133/2018

[2018] HKCA 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 133 OF 2018

(ON APPEAL FROM HCAL 834/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 27 April 2018 refusing leave to apply for judicial review.

2.  The applicant came from Nepal.  The applicant departed for the Mainland on 27 October 2010, and entered Hong Kong illegally on 3 November 2010.  He was arrested by the police on the following day.  On 7 November 2010, he lodged a torture claim.  His claim was taken to be a non‑refoulement claim under the Unified Screening Mechanism upon the commencement of the scheme in March 2014.

3.  The applicant’s claim was based on the fear that, if he returned to Nepal, he would be harmed, or even killed, by the Communist Party of Nepal‑Masal (“Masal”), he was a member of the Communist Party of Nepal-Unified Marxist-Leninist.  In January 2009, he was abducted and detained by members of Masal, who tried to convert him to join their party.  He later succumbed to the demand and was released.  However, after his release, he did not participate in any of the Masal’s activities.  Having realised that Masal would not leave him alone, he fled his home village for Kathmandu in August 2009 and lived there for about a year.  He left Nepal in October 2010.

4.  By a notice of decision dated 28 April 2015, the Director of Immigration rejected the applicant’s claim.  The director found that the low intensity and frequency of the past ill‑treatment from Masal indicated a small future risk of harm upon the applicant’s return to Nepal. The lapse of time would also dissipate the threat from Masal, and the availability of state protection and the viability of internal relocation would lower the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 22 February 2016, the board dismissed the appeal on 27 January 2017.  The board found that Masal was an “underground party” and not state agents of the government.  The injuries suffered by the applicant did not meet the minimum level of severity required by case law.  The board also shared the director’s view that state protection was available to the applicant and internal relocation was a viable option for him.  In addition to, and independent of, these findings, the board also found that the applicant was dishonest, his story unreliable and that he was not a genuine claimant.

6.  By a letter dated 16 February 2017, the director invited the applicant to submit additional facts, if any, on the ground relating to his BOR 2 risk[4]. In response, the applicant put in a set of written submissions dated 24 February 2017, in which four video links regarding the current situation in Nepal were provided.  Having considered the submissions and information provided by the applicant, the director took the view that the applicant failed to establish a personal and real risk of being arbitrarily deprived of life in violation of article 2 of the Hong Kong Bill of Rights.  By a notice of further decision dated 3 March 2017, the director determined against the applicant’s claim based on the BOR 2 risk.

7.  The applicant petitioned to the adjudicator of the Non‑Refoulement Claims Petition Office (who also comprised the board) against the director’s further decision.  The adjudicator did not see the need to arrange an oral hearing and decided to deal with the petition on paper.  Having considered the applicant’s further material and submissions, as well as the board’s previous decision, the adjudicator determined against the applicant’s petition.

8.  The intended application for judicial review was in respect of the decisions of the director and the board (including the adjudicator).  While the applicant did not include any grounds for seeking relief in the form 86 filed on 1 November 2017, he gave these grounds in the supporting affirmation made on the same date:

(a)  Lack of legal representation – the applicant was not given legal representation after the director’s first decision;

(b)  Lack of language assistance – his rights were thereby jeopardized;

(c)  The director’s wrongful exercise of case management power in dealing with the country of origin information (“COI”); and

(d)  Lack of fair hearing – the adjudicator failed to arrange an oral hearing for the applicant’s petition.

9.  After summarising the facts and background of the case and considering the decision of the board, the deputy judge set out his reasons in refusing leave in the CALL-1 form:

“13. For the applicant’s first ground of lack of legal representation in his appeal before the Board, the Court of Appeal has 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 51/2007 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: 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.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to give evidence and answered questions in person before the Board without any difficulty, and even now in his leave application for judicial review including attending in person an oral hearing before me during which he addressed the court regarding his application, he did not state or outline what further information or arguments which he wished to make but was unable to before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

15. As for his complaint of no language assistance during the process before the Board, clearly he was assisted by an interpreter at his oral hearing before the Board, and for that matter as well throughout his process before the Director. There is simply no basis at all in his complaint under ground (2).

16. For ground (3) about the adjudicator disregarding relevant COI in assessing the efficiency of state protection in Nepal, without any specifics or particulars from the applicant it is not clear on what basis is he making this complaint, and having considered carefully those COI referred to by the adjudicator for the Board as well as those by the Director and their decisions, I am unable to discern any irrelevant or improper consideration of COI by either of them.

17. As for the last ground of the Board’s failure to schedule an oral hearing for his claim on BOR 2 risk, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute right to an oral hearing, as whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issue involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: per Cheung CJHC in paragraph 26 of his judgment.

18. Here the applicant had already attended an earlier oral hearing before the same adjudicator for the Board during which he was able to fully present his case for his claim, and as stated in both the further decision of the Director and the Board, the applicant did not present any new argument under BOR 2 risk for his claim other than relying on some new materials and video links of which both the Director and the adjudicator did take into account in their consideration of his claim under BOR 2 risk. Even now in his leave application for judicial review including an oral hearing before me, the applicant still did not state or outline any additional facts or argument under BOR 2 risk relevant to his claim which he may have wished to present but could not in the absence of a further oral hearing before the Board. Having considered the decision of the Board, I do not find anything amiss arising from the lack of such further oral hearing in the process of the applicant’s second appeal to the Board.

19.  In the premises and for the reasons given, 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, or any failure on their part to apply high standard of fairness in their consideration and assessment of the applicant’s claim.  I am therefore not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

10.  In the notice of appeal filed on 3 May 2018, the applicant relied on the following grounds of appeal:

(a)  he had done his best to provide information to the director in respect of his claim based on the BOR 2 risk, but the director still rejected his claim;

(b)  if he had been provided with legal representation and language assistance, the result might have been different; and

(c)  the real-life situation in Nepal was different from the situation described in the COI.

11.  By a letter dated 4 May 2018, the applicant agreed that this appeal be heard by a two‑judge court.

12.  Following directions given by the Registrar of Civil Appeals, the applicant lodged his skeleton submissions on 27 June 2018. In his skeleton submissions, the applicant stated that he disagreed with the deputy judge’s observation that he had the benefit of legal representation in presenting his case to the director.  The applicant contended that no legal representation was given to him in respect of his claim based on the BOR 2 risk.  The applicant also repeated the grounds of appeal as stated in the notice of appeal.

13.  We heard the appeal on 25 July 2018.

14.  In our view, the deputy judge’s observations in the CALL‑1 form are fully justified.  As regards the complaints about the lack of legal representation, we are satisfied that the deputy judge applied the legal principles correctly.  Nor can we find any flaws in the deputy judge’s analysis of the facts.   There is no evidence before us that the Duty Lawyer Scheme refused to render assistance to the applicant when he approached them.  As was pointed out by the deputy judge, the applicant gave no particulars as to what further information or argument that he might have put before the board, had he been provided with legal representation.  There is no evidential basis to suggest that the director or the board would have come to a different conclusion if the applicant were legally represented.

15.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent of the BOR 3 risk, the persecution risk, and the torture risk.  As such, there is no reasonably arguable basis to challenge the fairness of the process on the ground of lack of legal representation in respect of the applicant’s BOR 2 claim.

16.  Again, the applicant gave no particulars as to how his rights were jeopardized by the lack of language assistance during the process.  We note that all court documents were written in English, which indicates either that the applicant is familiar with the English language, or that he has access to, or is able to seek, such language assistance as and when he needs it.  We also note that the affirmation made by the applicant (written in English) did not contain an interpretation clause, which again suggests that he can understand the English language without interpretation.  In these circumstances, we do not accept the contention that the suggested lack of language assistance has in any way jeopardized the applicant’s rights in this case.

17.  The third ground for seeking relief in the intended judicial review is clearly misconceived.  First, the director’s handling of the COI is not an exercise of the director’s case management power.  Secondly, as was pointed out by the deputy judge, the applicant gave no specifics or particulars as to how such COI was mishandled.  Thirdly, we do not find it reasonable to criticise the director’s handing of the COI, especially his consideration of both the negative and positive aspects of the situation in Nepal on the basis of the same report. Indeed, as was held by this court, where the relevant material contains information suggestive of a contrary view, a decision maker is required to demonstrate that he is aware of it and has taken it into account: Re MI CACV 69/2014, 26 September 2014.  We find nothing amiss in the director’s handling of the COI.

18.  There is no evidential basis for us to accept that the real-life situation in Nepal is different from that described in the COI.  Nor can we find any legal errors in the director’s handling of the COI.  As we have said many times before, evaluation of evidence is essentially a matter for the director and the board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the director and/or the board in the hope that the court may consider the matter afresh in the absence of any legal error.  See Re Lakhwinder Singh [2018] HKCA 246, and Re Daljit Singh [2018] HKCA 328.

19.  As regards the complaint relating to the absence of an oral hearing in determining the applicant’s claim based on the BOR 2 risk, we note that when the director invited the applicant to submit additional information, the applicant responded by submitting a set of written submissions.  He also provided four video links concerning the general condition of Nepal.  There is no suggestion from the applicant that the additional information concerned any material factual dispute that could not be decided without an oral hearing.  Nor is there any suggestion that there were factual issues that needed to be clarified in oral examination and cross-examination. The applicant had already had the opportunity to orally present his case to the board on other applicable grounds, and, as the deputy judge observed, even during the oral hearing for the leave application the applicant was still unable to state or outline any additional facts or argument under the BOR 2 risk.  In these circumstances, the absence of an oral hearing in dealing with the applicant’s BOR 2 claim is not a reasonably arguable ground for seeking leave to apply for judicial review.

20.  Having considered the applicant’s skeleton submissions as well as the material before us, we agree with the deputy judge’s decision.  We cannot see any errors of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of the non‑refoulement claim is a matter for the director and the board, not the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

21.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.