RE GHALE DHAN MATA

CACV 150/2021

[2021] HKCA 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2021

(ON APPEAL FROM HCAL NO 735 of 2018)

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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 against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 25 March 2021, refusing leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 795.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 March 2018 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 2 September 2016 and 1 August 2017 (“the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3.  This appeal was listed to be heard on 12 October 2021.  The applicant was directed to lodge two sets of skeleton argument on or before 14 September 2021 and was warned that if she failed to do so, she would be deemed to have waived her right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 18 August 2021.

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.  She entered Hong Kong as a transit visitor on 28 January 2014 with permission to remain until 4 February 2014.  She overstayed, and surrendered to the Immigration Department on 15 January 2016.  She raised a claim for non‑refoulement protection on the basis that, if she were to return to Nepal, she would be harmed or killed by the Maoists because she reported them to the Nepalese authorities.  The factual details of the applicants’ claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

7.  By a Notice of Decision dated 2 September 2016 and a Notice of Further Decision dated 1 August 2017, the Director rejected the applicant’s non-refoulement claim.  His decisions covered torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from the Maoists upon her return to Nepal as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

8.  On 13 September 2016, the applicant appealed the Director’s Decisions to the Board.  She attended an oral hearing before the Board on 19 December 2017 and gave evidence.  The Board dismissed her appeal on 14 March 2018.  The Board found no reliable evidence of any threats or ill-treatments being made against the applicant by the Maoists prior to her departure from Nepal.  The Board further doubted the applicant’s fear of the harm from the Maoists.  It further found that state protection was available and internal relocation viable.

The Leave Decision

9.  On 26 April 2018, the applicant filed a Form 86 and a supporting affirmation for leave to apply for judicial review of the Board’s Decision.  No ground against the intended challenge was given.  In her supporting affirmation, she merely stated that the Board’s Decision was unfair and unreasonable without providing any particulars or elaboration.  The applicant attended an oral hearing on 1 December 2020.  By the Leave Decision, the Deputy Judge held that:

“10. On 26 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that the decision is unfair and unreasonable but without providing any particulars or elaboration as to how it was so, nor did she put forward any other ground for her intended challenge, and at the hearing of her application she merely repeated her claim that her problem still exists that she cannot return to her home country. 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.

11. 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 the 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 in their decisions 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.

12. 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 her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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.

14. 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.”

The Appeal

10.  On 7 April 2021, the applicant filed her Notice of Appeal against the Leave Decision.  In the Notice of Appeal, she advanced the following grounds:

(1)  The Court and the authorities did not exercise caution and diligence in handling her case as a self-represented litigant and it has been procedurally unfair. (“Ground 1”)

(2)  She did not have language and legal assistance at all material times.  She failed to elaborate any grounds in her affirmation because she was not able to find any legal advice and was not able to understand the legal jargons of the process.  There were no grounds mentioned to show the errors of the Board’s Decision because she was not able to elaborate in English and she had been put in a detrimental position due to the lack of language assistance.  The Form CALL-1 was not explained to her by a qualified interpreter or translator and she was deprived of the right to make a full appeal. (“Ground 2”)

(3)  It is procedurally unfair that there was no other avenue for a non-refoulement claimant to seek an appeal against a decision based purely on credibility. (“Ground 3”)

Discussion

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

12.  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 the Court of Appeal to examine the 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).

13.  As a start, the applicant’s grounds of appeal were new and not raised before the Deputy Judge.  As this Court has repeatedly emphasised, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would generally not be entertained: see Re Daljit Singh [2018] HKCA 328 at [10]; Re Qadir Sher [2018] HKCA 160 at [11]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; and Re Sudimah [2019] HKCA 1030 at [12(3)].  On this basis alone, we will dismiss this appeal.

14.  In any event, the applicant’s arguments are devoid of merits.

15.  In relation to Ground 1, the applicant simply made a general assertion unsupported by any specifics or elaboration.  The Deputy Judge had set out in detail the relevant factual background of the applicant’s case, the findings and observations of the Director and the Board and his reasons for rejecting her application to seek leave to apply for judicial review.  There is no error of law or procedural fairness or irregularity in the Leave Decision.  As such, Ground 1 must fail.

16.  As to Ground 2, it is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as she desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for protection against BOR2 or BOR3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].

17.  We note that the court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  During the hearing before the Deputy Judge, the applicant was also assisted by a Nepalese interpreter.  It is therefore clear that the applicant was not in any way prejudiced.

18.  Furthermore, the applicant was legally represented before the Director.  Although she had no legal representation before the Board and the Deputy Judge, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim.  Accordingly, Ground 2 also fails.

19.  Ground 3 is a general allegation unsupported by any specifics or particulars by the applicant.  In any event, the applicant had already exercised her right of appeal against the Director’s Decisions to the Board, which was in the nature of a re-hearing.  The fact that there is no further right of appeal against the Board’s Decision is not a valid ground of judicial review against the Board’s Decision.  The applicant had also exercised her right to seek leave to apply for judicial review against the Board’s Decision, which had been thoroughly considered by the Deputy Judge.  There is no unfairness in the whole process of determination of her claim.

20.  Having considered the materials before us, we are of the view that the Deputy Judge’s observations and conclusions are fully justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the Deputy Judge that leave to apply for judicial review should not be granted.

21.  For all these reasons, we dismiss the appeal.