RE DHAN BAHADUR SHREES THAPA

CACV 377/2021

[2021] HKCA 1713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 377 OF 2021

(ON APPEAL FROM HCAL 2713 OF 2018)

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JUDGMENT

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

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge To (“Judge”) on 22 July 2021 (“Judge’s Decision”) refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 8 November 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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 16 August 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 57, is a fear of being harmed or even killed by certain Maoists upon his return to Nepal by reason of his support of the Congress Party (“CP”), an opposing political party.

3.  For a detailed summary of the circumstances giving rise to such fear, see paragraph 6 of the Director’s Decision, paragraphs 7 and 9 of the Board’s Decision and [5] to [8] of the Judge’s Decision embodied in the Form CALL-1 dated 22 July 2021, [2021] HKCFI 2157 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant had supported the CP since 2000 or 2001, without encountering any problem until about 2013.

(2)  One day in about 2013, 4 Maoists went to his house to ask him to join their party. The applicant refused, telling the Maoists that he was supporting the CP.  The Maoists threatened to kill the applicant if he still declined to join them the next time they approached him.

(3)  Fearing for his life in the belief that Maoists tortured and killed people who would not join them, the applicant fled to Pokhara, where he lived and worked as a labourer for about 6 months without mishap.

(4)  He next moved to Kathmandu in case the Maoists would locate and kill him.  His one-month stay in Kathmandu was uneventful.  Nevertheless, the applicant remained in great terror.  His paternal uncle then suggested that he should come to Hong Kong to seek protection.

(5)  The applicant left Kathmandu for Guangzhou, PRC using his Nepalese passport.  He did not have any problem at the Nepalese immigration control point.

Overstay in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong on 1 March 2013 and was permitted to remain as a visitor until 6 March 2013.  The applicant, however, overstayed.  He was arrested on 3 December 2014.

6.  The applicant raised the NRF Claim by written representation dated 3 December 2014 and completed and submitted a Non-Refoulement Claim Form (“NCF”) on 26 June 2017, with the assistance of the Duty Lawyer Service.

Director’s Decision

7.  After considering the information provided by the applicant in the NCF and at the screening interview on 20 July 2017, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the risk of harm from the Maoists was low.  Although the Maoists apparently knew of his initial relocation to Pokhara, they did not cause him any actual harm there.  His further move to Kathmandu for around 1 month was uneventful.

(2)  Further, the applicant stated in his initial written representation that he visited Hong Kong for shopping, after which he would return to Nepal.  Such representation indicated that the applicant had all along intended to return to Nepal.  It could therefore be inferred that the threat from the Maoists was not imminent or serious.   

(3) Second, objective country of origin information (COI) suggested that reforms have been and are on-going in respect of the police in Nepal, with objective indications of positive results in recent years.  There would be reasonable state protection available to the applicant.  It was the applicant himself who chose not to seek assistance from the police as he considered them to be corrupt.

(4) Third, the perceived risk (if any) can also be reduced by internal relocation to other parts in Nepal such as Kathmandu.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.  The Board conducted a rehearing of the NRF Claim on 15 August 2018.  The applicant attended to give evidence and answered the Board’s questions.

9.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  In particular, it found aspects of the applicant’s account of key events (such as his relocation to Pokhara and Kathmandu and the purpose of his visit to Hong Kong) inherently inconsistent and therefore incredible.

10.  The Board also reached the same conclusions as the Director regarding the availability of state protection and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2713/2018 on 29 November 2018, the applicant applied for judicial review of the Board’s Decision.

12.  The Form 86 was accompanied by a convoluted, diffuse and repetitive 17-page document, by which the applicant first broadly complained that the Board (1) was in breach of procedural fairness by unlawfully fettering its discretion; (2) acted in a procedurally unfair manner; (3) reached a decision that was unreasonable or irrational in the public law sense; and (4) failed to meet the greater care and duty owed to a self-represented claimant.  In [14] of the Form CALL-1, the Judge carefully correlated the details given by the applicant in the said document to the aforesaid broad criticisms against the Board.

13.  After hearing the applicant in open court, the Judge refused leave for the reasons set out in [16] to [33] of the Form CALL-1:

“Ground (A1)-(A9) – Challenging the Board’s Decision

16.  Under Ground (A1), the Applicant accused the Board of having misdirected itself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.  This is a distorted reading or construction of paragraph 17(b) of the Decision.  The Board said:

‘The absence or low intensity and frequency of past ill-treatment from these people is indicative of a low future risk of harm upon his return to Nepal.’

What the Board said was that from the absence or low intensity and frequency of past ill-treatment from the Maoist, it was reasonable to draw the inference that the risk of future harm would be low.  The Board did not direct itself that the Applicant must have suffered serious ill-treatment as a pre-condition for proving future risk.  It is all a matter of inference to be drawn from all the circumstances, including the intensity and frequency of the ill-treatment. Whether to draw the inference is a finding of fact within the province of the Board as the tribunal of fact to make.  There is no substance in this ground.

17.  Under Grounds (A2), (A3) and (A5), the Applicant complained about inadequate research and inquiry into the COI, failure to have regard to relevant and up-to-date COI research etc and failed to give proper weight on relevant COI.  He accused the Board of cherry-picking on the COI.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2016: Nepal published by the United States Department of State; The Wold Factbook - Nepal, published by United States Central Intelligence Agency; and news reports from credible sources such as The Himalayan, The Republica and The Business Standard.   Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI.  The Applicant accused the Board of not referring to the most up-to-date COI.  But when asked, he could not produce the COI which he said was most up-to-date.  He mentioned “USHR 2010”, “USRF 2010” and The Report on the ICJ Mission to Appeal” in Ground (C2) at page 19 of the Form 86.  When asked, he said he did not know what these are.

18.  Under Ground (A4), the Applicant complained that the Board failed to evaluate and make a finding of fact as to whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of Convention Against Torture. As a result, the Decision is unreasonable. The article does not require the decision maker to make such finding in all cases.  The decision maker is only required to make the finding where applicable.  On the facts of this case, as the Board primarily did not believe the Applicant’s feared harm and risk are real, it was not necessary to make a finding whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights.

19.  Under Ground (A6), the Applicant complained that the Board took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant.  As a result, the Decision is unreasonable.  The Applicant did not identify what the irrelevant considerations and relevant considerations were.  This is just an un-particularized complaint.

20.  Under Ground (A7), the Applicant complained that the Board failed to call for psychological and psychiatric evaluations and reports on the Applicant.  There is no evidence that the Applicant made any complaint of psychological or psychiatric ill-treatment.  On the Applicant’s case, there was no such ill-treatment.  This complaint is frivolous.

21.  Under Ground (A8), the Applicant complained that the Board applied the incorrect standard of proof in the Decision.  He did not identify under what circumstances and to which issues or finding were the wrong standard applied. The Court was unable to identify such blatant error.

22.  Under Ground (A9), the Applicant complained that the failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure. This complaint is totally un-particularized and lack of specificity.  It can only be ignored as groundless.

Ground (B1) - (B3) – Irrationality in the Board’s Decision

23.  These grounds are related to allegations that the COI considered by the Board are out dated, incorrect, and irrelevant and the Board failed to take into account most up-to-date and relevant COI.  These grounds have been considered under Grounds (A2), (A3) and (A5) and dismissed.

Ground (C1) - (C4) – Procedural Impropriety/Unfairness

24.  Grounds (C1) to (C3) are related to allegations that the COI considered by the Board are out dated, incorrect, and irrelevant and the Board failed to take into account most up-to-date and relevant COI.  These grounds have been considered under Grounds (A2), (A3) and (A5) and dismissed.

25.  Under Ground (C4), the Applicant complained that the Board failed to fulfil its positive obligation to obtain the requisite documents which are substantial.  This complaint could not be considered for want of particulars. There is not a clue what those documents the Applicant was referring to and why he could not have produced them.

Ground (D1) - (D6) – Procedural Impropriety/Unfairness

26.  Under Ground (D1), the Applicant complained that he was not given legal assistance in filing his appeal against the decision of the Director in his Notice.  In Re Zafar Muzzam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation in prosecuting his appeal before the Board.

27.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director.  All that legal representation could have benefited him are contained in these documents which would be placed before the Board.  The appeal is by way of a rehearing.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in prosecuting his appeal before the Board.

28.  Under Ground (D2), the Applicant complained that the Board refused his appeal on 8 November 2018, but it was not until 28 November 2018 that he received the Decision and the secretariat of the Board refused to notify him of the result by phone.  Assuming all these allegations are true, the Court was unable to find how these facts would affect the reasonableness or rationality of the Decision by the Board.

29.  Ground (D3) relates to the COI and has been dealt with under Grounds (A2) and (A3) above.

30.  Grounds (D4) and (D5) are related to lack of a screening interview before the Director made his decision in the Notice in rejecting his claim under BOR 2.  The Applicant complained it was unfair to deprive him of his absolute right to an oral hearing in relation to his BOR 2 claim.  There is no requirement that a separate screening interview and a separate hearing be held in respect of a claim under BOR 2.  In paragraph 3 of the Guideline for completing the NCF, the Applicant was informed that his claims will be considered under all applicable grounds available under the USM, including BOR 2.  That was also explained to him at the screening interview held on 20 July 2017.  In the Notice dated 16 August 2017, the Director also mentioned the same.  There is no basis for the Applicant to claim he had an absolute right to a screening interview and separate hearing in respect of his BOR 2 claim.

31.  In Ground (D6), the Applicant said there are many more unacceptable and unexplainable grounds.  Again, he did not particularize.  The Court could only ignore this ground as frivolous.

Conclusion

32.  None of the grounds raised in Form 86 has any substance.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

33.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault.

34.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was refused.”

Appeal to Court of Appeal - grounds of appeal

14.  By a notice of appeal filed herein on 3 August 2021, the applicant appealed against the Judge’s Decision but on the ground that he was not satisfied with the Board’s Decision. No supporting affirmation was filed.

15.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 19 August 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

16.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions. Non-compliance is treated as the abandonment of the right to an oral hearing.

17.  The hearing date on 1 November 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

18.  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 Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2) & (4)].

19.  The dissatisfaction with the Board’s Decision expressed by the applicant in the notice of appeal is therefore not a concern of this court.  It is wholly misconceived.

20.  In short, the applicant did not in the notice of appeal identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any. 

21.  In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

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