PURNA BAHADUR GURUNG v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITON OFFICE

CACV 241/2021

[2021] HKCA 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 241 OF 2021

(ON APPEAL FROM HCAL NO 2764 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  On 30 April 2021, DHCJ To (“the Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 30 November 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 26 August 2016 and 1 August 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 12 May 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

BACKGROUND

3.  The Applicant is a Nepalese national.  He arrived in Hong Kong on 29 June 2004 as a visitor.  He overstayed and was arrested by the police on 22 May 2008.  He made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the basis that if he were refouled, he would be harmed or even killed by the Maoists in Nepal as he had refused to join and support them.  The factual background of his case was succinctly summarized by the Judge in [3] – [7] of the Form CALL-1 ([2021] HKCFI 1209).

4.  His torture claim was rejected by the Director on 23 September 2011.  On 17 August 2012, his petition against the Director’s decision was refused by the Petition Team, Security Bureau.

5.  With the introduction of the Unified Screening Mechanism in March 2014, the applicant’s non-refoulement claim was assessed on all applicable grounds.  By a Notice of Decision and Notice of Further Decision dated 26 August 2016 and 1 August 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds, i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.  The applicant appealed the Director’s decisions to the Board.  He attended oral hearings before the Board on 27 March 2018 and 30 August 2018.  By its decision of 30 November 2018, the Board dismissed the appeal.  The Board did not find the applicant a credible witness as there were inconsistencies on material facts in two questionnaires answered by him.  Further, the Board was not satisfied that the Maoists had the intention to cause him severe harm because, even if his evidence was taken at the highest, he had been threatened three times with no violence.  The Board took into account the fact that the present Prime Minister of Nepal is from Nepalese Congress Party and not from the Maoists, the Maoists had come to terms with the Nepalese government and had been delisted as a terrorist group by the US State Department in 2012, and there was no evidence to suggest that the applicant would still be pursued by the Maoists after 16 years upon his return to Nepal.  The Board held that that the applicant had failed to prove any real risk of harm if he were refouled.  Also, relevant country of origin information (“COI”) suggested that state protection was available to the applicant.  For the above reasons, the Board rejected the Applicant’s non-refoulement claim on all applicable grounds.

DECISION OF THE COURT BELOW

7.  On 5 December 2018, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Board’s decision.  The Applicant lodged a seventeen-page submission in support of his application.  The submission quoted a number of judicial authorities and statutory provisions and the Judge found that it was a “clone” from another application.  In gist, his grounds revolved around the lack of language assistance; that the COI materials relied on by the Board were not officially recognized and were hearsay; and procedural unfairness, irrationality and unreasonableness in the Decision.

8.  The Judge heard the application on 22 April 2021. By his decision dated 30 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [22] of the Form CALL-1 as follows:

“14. As for his first complaint, he said that the majority of the documents in the appeal bundle were in English and without translation. He was only given the appeal bundle a few days before the hearing. There was insufficient time for him to arrange for translation and to prepare for the hearing. He was not given legal representation. He said that due to lack of understanding on what will happen in the hearing he was confused in terms of what was happening. In Re Zafar Muazam, 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.

15. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his supplemental claim form, attending the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. The appeal bundle is basically made up of his supplemental claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. He certainly knew what were in the supplemental claim form and the record of the screening interview as he was the author of those documents. The 2016 Notice and 2017 Notice of the Director were issued to him on 26 August 2016 and 1 August 2017 respectively. It was not until 27 March 2018 that the oral hearing was held and there was an adjourned hearing on 30 August 2018. The Notice is in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notices and the oral hearing of seven to nineteen months to seek assistance from among his own circle. By the time of the hearing of the Board, he had been in Hong Kong for fourteen years. He must have his means of seeking language assistance. Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

16. He complained the fact that the Decision dated 30 November 2018 was not accompanied by a translation in Nepalese; was not delivered to him until 3 December 2018; and the secretariat of the Board’s refusal to inform him of the outcome of the appeal over the phone amounted to procedural impropriety/ unfairness. The Decision was made after an oral hearing during which he had the benefit of interpretation services. A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal. It is not known why it took three days for the Decision to reach him by post. In any event, it was not unduly long and he suffered no prejudice. Such complaints are frivolous and vexatious.

17. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated.

18. As for his complaint about the COI being not officially recognised and made up of hearsay, it is incorrect. The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices 2015 – Nepal published by the United States Department of State dated 13 April 2016; Freedom in the World 2015 – Nepal published by Freedom House dated 28 January 2015; and Amnesty International Report 2015/16 – The State of the World’s Human Rights – Nepal published by Amnesty International dated 24 February 2016. By its nature, the COI consist of hearsay information, but, given its source, are credible.

19. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue. In his submission, he quoted three COI, namely (a) USHR 2010; (b) USRF 2010; and Report on the International Commission of Jurists Mission to Nepal and argued that had the Board considered these COI, the Board would find they supported the Applicant’s fears and a finding of a consistent pattern of human rights abuses and lack of state protection in Nepal. When asked about what those COI were, the Applicant said he had no idea and could not produce a copy for the Court’s consideration.

20. The Board had considered negative COI and positive COI. Its finding that state protection is available is a finding of facts. There is nothing to suggest the finding was unsupported by evidence, unreasonable, irrational or erroneous in law. The Court considered this ground totally groundless.

21. 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 facts by the Board. The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Having rigorous 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; 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 Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.

Conclusion

22. Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.”

APPEAL TO THIS COURT

9.  On 12 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  The applicant did not provide any ground of appeal save for saying that he would like to challenge the Judge’s decision.

10.  In compliance with the Court’s directions of 13 July 2021, the applicant lodged his written submissions on 16 August 2021.  In his written submissions, he claimed that it was dangerous for him to go back to Nepal as he would be killed by the Maoists as they used to kill innocent people.

11.  At the hearing, the Applicant had nothing to say.

LEGAL PRINCIPLES

12.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and 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 was otherwise plainly wrong.

(3)   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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

DISCUSSION

13.  The applicant has not in his Notice of Appeal or written submissions identified any specific errors or specific potential grounds for reversing the Judge’s decision, or raised any viable grounds of appeal against the Judge’s decision.  Having considered the materials before us, we are of the view that the Judge’s decision is fully justified.  We are satisfied that the Judge reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was right to refuse leave to apply for judicial review.

ORDER

14.  For the above reasons, the present appeal is dismissed.