RE THING BIJAY

CACV 345/2019

[2019] HKCA 1385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 345 OF 2019

(ON APPEAL FROM HCAL NO. 1586 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)    The appeal

1.1     This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

1.2     The applicant failed to comply with the directions of the Registrar of Civil Appeals of 19 August 2019 and did not file his skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  We will deal with the appeal on paper.

2)    Background

2.1     The applicant is a national of Nepal.  He arrived in Hong Kong as a visitor and overstayed.  He was referred to the Immigration Department and he subsequently raised a non‑refoulement claim on the basis that he would be harmed or killed by the Communist Party of Nepal Maoist (‘CPNM’) if he returned because he had converted from the CPNM to the Congress Party.

2.2     The details of the applicant’s claim have been summarized by the Judge at [3] of the CALL‑1 Form.

3)    The Director’s Decision

3.     The Director decided against the applicant’s claim on 26 October 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (risk of violation of the right to life), as well as his other statutory and convention rights against torture and persecution.

4)    The Board’s Decision

4.1     The applicant appealed against the Director’s decision to the Board.  After a hearing held on 20 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 26 July 2018.

4.2     The Board found that the applicant’s alleged case was incredible.  It contained fundamental and central discrepancies.  It fatally undermined his credibility.

5)    Decision of the Judge

5.1     The applicant complained before the Judge the following :

(1)      The hearing bundle was given to him in English without translation;

(2)      There was no legal assistance for his appeal before the Board and for his leave for judicial review applications;

(3)      He was not legally represented.

5.2     The Judge found that during the hearing before him, the applicant confirmed to the Court that the interpreter had explained the hearing bundle to him.  He confirmed that he had no difficulty in the appeal hearing and he had had a fair hearing before the Board.  It was also trite that the applicant does not have the absolute right to legal representation at all stages of the proceedings.  

6)    Grounds of appeal

6.     The applicant stated in his notice of appeal the following grounds :

‘ I am not satisfied with the decision given by torture claim appeal board because I have problem in my own country. Please help me to stay here until my problem will be solved.’

7)    Our view

7.1     We will repeat the approach of this Court in dealing with cases of this nature :

(1)      The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

(2)      An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or otherwise plainly wrong.

(3)      In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2     In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3     We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.