RE DHANA KARKI

CACV 295/2020

[2021] HKCA 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 295 OF 2020

(ON APPEAL FROM HCAL 1939/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 14 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 17 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 25 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 30 September 2004 as a visitor and was permitted to remain until 7 October 2004.  She overstayed and surrendered to the authorities on 29 August 2007.  She lodged a torture claim which was rejected on 30 September 2013 by the Director.  She lodged a non-refoulement claim on 11 October 2013.

3.  The applicant’s claim was based on threats from the Maoist party in Nepal.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 25 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 May 2018, the Board dismissed the appeal on 17 August 2018 (“Board’s Decision”).

6.  At [34] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [55] that state protection would be available for the applicant.

The judge’s decision

7.  The applicant filed a Form 86 on 14 September 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application dated 14 September 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [11] of CALL-1 Form:

(1) that it was procedural unfairness not to provide any language assistance for her appeal to the Board and with no translation or interpretation of those documents in the hearing bundle for her appeal being given to her;

(2) that the Director wrongly exercised his case management power by using a biased formulistic approach in coming to the conclusion that state protection was available to the Applicant which was contradictory as his balancing exercise used on the assessment of the available COI had not been conducted properly;

(3) that such cherry-picking and biased formulistic approach in coming to such conclusion was highly unfair and prejudiced as the Director had wrongly exercised his case management power by putting too much weight on the COI that did not reflect the true situation in Nepal; and

(4) that the decision of the Board was never read or translated to her that she was not aware of the reasons for dismissing her appeal.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. These are however mostly 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 applied to her case or how the Director or the Board had erred in their decisions, or in what way did they use a biased or formulistic approach towards the assessment of her claim or cheery-pick the relevant COI in assessing the situation in Nepal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13. As for her complaint of not being provided with language assistance in her appeal before the Board or to have those documents in her hearing bundle translated to facilitate her appeal to the Board, it is clear that most of the documents such as the Director’s decision were already provided to her earlier when she was still represented by her lawyer from DLS, while her SCF was also prepared by her lawyer on her instructions, and that she was also assisted by an interpreter during her appeal hearing before the Board when she never raised any issue with translation or asked for further time to prepare for her appeal. In the circumstances I do not find any basis or merits in this complaint of the Applicant.

14. As for her complaint that the Board’s decision was never translated to her, even if true this cannot per se be accepted as a valid ground to challenge the decision itself. As such I do not find it reasonably arguable either.

15. 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 or her 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.

16. 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 the Applicant’s 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.

17. 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.

18. 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.”

Grounds for appeal

10.  In the Notice of Appeal dated 24 July 2020, the applicant contended that:

(1) the court and authorities did not exercise caution and diligence in handling her case as a self-represented litigant;

(2) the judge failed to appreciate the impact of the lack of language assistance.  Further, the CALL-1 Form was not read back to her in her native language;

(3) the judge failed to consider the significance and unfairness from the lack of language and legal assistance;

(4) due to the lack of language assistance and legal advice, she was not able to elaborate on the grounds of judicial review in her affirmation;

(5) the fact that there are no other avenues for a claimant to seek an appeal against a decision purely against credibility is procedurally unfair;

(6) the judge failed to make a finding on whether interpretation service was provided to the applicant after the Director’s Decision.  The judge also erred in his consideration of the lack of interpretation service;

(7) the applicant wishes to have an oral hearing with an interpreter, with translation and language assistance provided to her.

11.  In her skeleton submissions dated 2 February 2021, the applicant submitted that:

(1) the Director did not find her incredible but the Board did.  There should be a review mechanism regardless of the nature;

(2) there was a lack of language and legal representation when her claim was before the Board and the Director;

(3) the judge failed to address the issue raised by the applicant, namely “the Board’s failure in arranging for an interpreter or a translation for [her] to better understand [her] case and consider [her] options of appealing to a higher authority”.  Further, the decision by the judge was not read back to her but was merely posted to her by mail;

(4) although the Board’s decision was explained to her by her friend, the applicant did not understand the legal jargons used in the hearings before the Board and the judge;

(5) the lack of free legal representation and language assistance should be considered as procedural unfairness;

(6) because the CALL-1 Form was not read back to her, the applicant was deprived of the right to make a full appeal;

(7) the applicant wishes to have an oral hearing with an interpreter, with translation and language assistance provided to her; and

(8) the applicant to have a reconsideration of her case based on procedural unfairness.

12.  The applicant agreed by a letter of 24 July 2020 that the appeal could be heard by two judges.  We heard the appeal on 1 March 2021.

Discussion

13.  The applicant advanced a number of grounds based on the lack of legal representation at different stages of her claim.  As to this, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In our view, the ground based on the lack of legal representation has no merits.

14.  As for the grounds based on the lack of language assistance, the judge dealt with the position before the Director and the Board, noting that the applicant had the assistance of a lawyer assigned by the Duty Lawyer Service at the interview with the Director, and in the preparation of her claim form, and also had the assistance of an interpreter at the hearing before the Board, where she gave oral evidence.  In these circumstances, the judge considered, in our view rightly, that there was no procedural unfairness in the process of consideration of her claim by the Director and the Board.  We also note that that the applicant was assisted by an interpreter in the hearing of her judicial review application before the judge. 

15.  Further, in her application for leave for judicial review and in this appeal, the applicant was able to provide court documents in English.  She identified the alleged errors committed by the Board and the judge and made submissions in writing on those alleged errors.  It is clear that even if not proficient in English, she has had access to language assistance.    

16.  In our view, the judge was right to hold that there was no procedural unfairness in the failure to provide the more extensive language assistance for which the applicant contends.   

17.  As for the ground based on the different findings on her credibility by the Board and the Director, we observe that the ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.