RE SANJAYA KUMAR MAGAR

CAMP 415/2021

[2022] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 415 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2819 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge To (“Judge”) on 3 June 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is directed against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 November 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 24 February 2017 rejecting the applicant’s non-refoulement claim.

2.  On 3 September 2021, Deputy High Court Judge K W Lung refused to extend the time for the applicant to appeal against the Judge’s decision of 3 June 2021.[2]

Background

3.  The applicant is a Nepalese national born in 1978. He apparently entered Hong Kong illegally in 2007. He surrendered himself to the Immigration Department on 11 August 2008, and raised his non-refoulement claim on 21 October 2008.

4.  The applicant claimed that in 1998 the Maoists in Nepal asked him to join them. After he refused, the Maoists searched for him and extorted money from his family when they did not find him. In around 2000, the applicant joined the Army but this ended after a few months when he deserted. The applicant went to Malaysia in 2001, returned to Nepal in 2006, and came to Hong Kong in 2007. His non-refoulement claim was based on the fear that, if he returned to Nepal, he would be harmed or even killed by Maoists for refusing to join them, or by the Nepal Army for having deserted them. The factual background was set out in greater detail at paragraphs 6.1 to 6.37 of the Director’s decision dated 12 June 2014.

5.  By notices of decision dated 12 June 2014 and 24 February 2017 respectively, the Director assessed the applicant’s claim in relation to all applicable grounds and determined it against him. The former decision covered BOR 3 risk,[3] persecution risk[4] and torture risk,[5] whereas the latter covered BOR 2 risk.[6]

6.  The applicant separately appealed to the Board against those two decisions of the Director. On 13 August 2015, the Board dismissed the appeal against the Director’s decision dated 12 June 2014, after holding an appeal hearing on 28 November 2014; that appeal is not the subject of the present legal proceedings. In that decision, the Board found that the applicant’s evidence was “wholly unreliable” principally because of the inconsistencies between the statements in his claim forms, the answers he gave at the interview with the Immigration Department and his evidence to the Board. The Board further found that the applicant had never suffered any pain or suffering from the alleged sources and that he was not targeted by the Nepalese government as shown by his ability to leave and re-enter Nepal without any trouble. The Board also found that internal relocation was viable and that reasonable state protection was available. In the result the Board concluded that there was no real risk of harm under the grounds of torture risk, BOR 3 risk and persecution risk in the event of refoulement, and dismissed the appeal in respect of those grounds.

7.  The applicant’s appeal to the Board against the Director’s decision in relation to BOR 2 risk dated 24 February 2017 was determined without a hearing, there being no additional facts submitted by the applicant. The Board found that there was no evidence to support the applicant’s claim, which the Board considered to consist of bare allegations. The Board dismissed the applicant’s appeal on 30 November 2018 in relation to the ground of BOR 2 risk.

The Judge’s decisions in the court below

8.  On 10 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision of 30 November 2018. In his Form 86, he raised a number grounds for judicial review, which the Judge summarized at [8] of the Form CALL-1 as follows:

“ 8. The Applicant filed 15 pages of grounds together with his Notice of Application for leave to apply for judicial review. The main theme of his grounds of judicial review is procedural unfairness. He advanced four grounds in support of his complaint of procedural unfairness:

(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

He also gave three statements of facts about his siblings, his education level and his clear record which the Court did not consider as grounds supportive of his complaints.”

9.  Following a hearing on 13 May 2021 attended by the applicant, the Judge gave decision on 3 June 2021 refusing to grant leave to apply for judicial review, for reasons set out at [9] – [21] of the Form CALL-1 as follows:

“ Ground (1)

9. Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal. The real question is whether he truly met the requirements for protection. This is a finding of facts within the province of the Board. In this regard, the 2018 Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality. Having considered the totality of the evidence and the other grounds of judicial review, the Court was satisfied that there is no substance in this ground of application.

Ground (2)

10. Under Ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with his appeal. The unfairness alleged include insufficient research and inquiry into the Country of Origin Information (“COI”); wrong weighting given to the different COI; failure to call for psychological and psychiatric evaluations; applying incorrect standard of proof; lack of legal representation; and that the Director’s decision in the 2017 Notice was made without a screening interview.

11. The 2018 Decision of the Board is based on the Applicant’s evidence given at the previous hearing in 2015 and his grounds stated in the Notice of Appeal filed for the purpose of the appeal in 2018. The Board did not refer to any COI in the hearing in 2018. In the previous hearing in 2014, the Board referred to some COI. They are all from credible sources, including the 2012 Human Rights Report: Nepal and 2013 Human Rights Report: Nepal published by the United States Department of State; and the World Factbook – Nepal published by the Central Intelligence Agency of the United States. The Applicant complained that the Board failed to carry out adequate research into the COI but did not suggest what such further researches would be and would have revealed. He quoted COI citation such as “USHR 2010, USRF 2010 and the Report on the ICJ Mission to Nepal by the International Commission of Jurists”. When asked what these COI are, he had no idea and could not produce a copy. The Court was also unable to obtain those COI. It is obvious that this ground was written by someone on his behalf without regard to the factual circumstances of this case. As for weighting to be given to the COI, it is a finding of facts within the province of the Board. This complaint is just an empty assertion.

12. The Applicant’s complaint about the Board’s failure to call for psychological and psychiatric evaluations is another example of empty assertion. The Applicant never claimed that he had been subjected to ill-treatment by the Maoists and never raised any request for psychiatric or psychological evaluations.

13. His complaints that the Board misdirected itself on the law and erred in applying the wrong standard of proof are devoid of particulars and substance.

14. His complaint about lack of legal representation is misconceived. In Re Zafar Muazam,⁵ Re Zunariyah,⁶ Re Zahid Abbas,⁷ Re Tariq Farhan,⁸ and Re Lopchan Subash,⁹ the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security¹⁰ nor the judgment of FB v. Director of Immigration¹¹ prescribes that 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 claimant is prejudiced for want of legal and language assistance.

15. The Applicant had the benefit of legal representation in preparing his non-refoulement claim form, in attending the screening interview and presenting his case to the Director at the 2014 hearing. He had no complaint about lack of legal assistance up to that stage. His complaint is that he had no legal assistance thereafter. However, all the benefits that legal representation could have afforded him are contained in his written submissions, his non-refoulement claim form and his answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. He also had the services of a qualified interpreter at the oral hearing before the Board on both occasions to assist him in presenting his appeal. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. He suffered no prejudice due to lack of legal representation before the Board.

16. His complaint about the Director’s decision in the 2017 Notice being made without a screening interview is frivolous and vexatious. The Applicant did not respond to the immigration officer’s request for further relevant material and information. There being no additional information, a further screening interview would serve no useful purpose. Besides, the decision of the Director in the 2017 Notice was superseded by the 2018 Decision of the Board. The appeal is by way of re-hearing. The Applicant was free to present his case to the Board. The oral hearing served the purpose of a screening interview.

17. The Court was unable to find any procedural irregularity or unfairness in the process.

Ground (3) – unreasonableness and irrationality as a result of procedural unfairness

18. Under Ground (3), the Applicant argued that the 2018 Decision of the Board was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness. The complaint of procedural errors and unfairness was discussed under Ground (2) and rejected by the Court. The scope within which this ground may be argued is very limited. The Applicant submitted two documents in Nepalese dated 25 April 2014. The first document was issued by the Village Development Committee Office. It asserts that the Applicant is a war victim and spent the past 8 years in Hong Kong as a refugee. The second document is a certificate issued by the Police Office to that effect. These documents added nothing new. Even if they had been produced at the appeal, they would have no impact on the 2018 Decision.

19. The Applicant gave no particulars of unreasonableness and irrationality. At the hearing, attempts had been made to find out from him what he felt was unfair or unreasonable. The only answer he could give was that the immigration officer did not believe him. The complaint of unreasonableness and irrationality is obviously directed at the outcome of the 2018 Decision. This is in substance a challenge of the finding of facts of the Board. The function of the court in judicial review is not to re-assess the non-refoulement claim 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. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7]. Having rigorously examined the 2018 Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under BOR 2 Risk grounds was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its 2018 Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.

Ground (4) – Breach of greater duty of care owed to self-represented claimant

20. Under this ground, the Applicant accused the Board of having failed to meet the greater care and duty owed to a self-represented claimant. Again, he did not particularize the alleged failing of the Board. In the opinion of the Court, on the face, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented.

Conclusion

21. The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the 2018 Decision of the Board. The Court found that the Board adhered to a high standard of fairness. The Board’s 2018 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicant’s claim was not reasonable arguable. There was no realistic prospect of success. Accordingly, leave to apply for judicial review was refused.”

10.  The applicant did not appeal against the Judge’s decision within the 14-day period prescribed by the rules of court. On 26 July 2021, however, he filed a summons to seek an extension of time to appeal. In his supporting affirmation he explained that he did not receive that decision by post, but only became aware of it after a friend helped him check for the judgment online. He explained that it took another few days to find someone to translate the documents to him, and that he was not aware of the 14-day deadline for appealing, which was not mentioned in the judgment.

11.  As for his intended grounds of appeal, in his supporting affirmation the applicant stated that the Judge, despite knowing of his language barrier, had not made reasonable arrangements to enable him to understand the judgment (including not providing a translation or having it read back to him), which deprived him of the right to appeal. The applicant argued this was a wrongful exercise of case management power by the Judge.

12.  Following consideration of the documents only, on 3 September 2021, Deputy High Court Judge K W Lung refused to grant an extension of time to appeal, as he did not see any prospect of success in the intended appeal, and consequently dismissed the summons.

The renewed application before this Court

13.  On 28 September 2021, the applicant filed a summons seeking from this Court an extension of time to appeal against the Judge’s refusal to grant leave for judicial review. In his supporting affirmation, the applicant deposed that due to the lack of legal and language assistance in court proceedings subsequent to the refusal of leave for judicial review, he had been deprived of the opportunity to understand the Court’s judgments and to raise proper grounds of appeal. The applicant further elaborated that by not having the decision translated or read back to him, he could not understand the determination to the fullest and that that was unfair. Without assistance from an interpreter, he had to rely on friends, whose command of English is limited, to translate documents. He also argued that it is unfair to expect an uneducated person to know the law of a foreign country. In addition, he argued that in his circumstances, because he does not understand English, fairness requires an oral hearing with an interpreter to rehear his claim, which he feels was not determined fairly.

14.  The applicant lodged his written submissions on 11 October 2021, in which he repeated the arguments raised in his affirmation.

15.  Having considered the available materials, we consider it appropriate for the application to be dealt with on the basis of the documents alone without an oral hearing.

Discussion

16.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

17.  The applicant was late by 39 days in trying to appeal against the Judge’s decision dated 3 June 2021. As the delay whilst substantial was not very lengthy and his explanation for the delay was not wholly implausible and the applicant was not legally represented, in the circumstances we have proceeded to determine the present application on the basis of the merits of the intended appeal.

18.  In assessing the merits of the intended appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 judgment below, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

19.  The applicant’s arguments for the intended appeal are in essence that there was a lack of or insufficient language and legal assistance in the court proceedings, and that there should have been an oral hearing.

20.  The applicant was legally represented and provided with language assistance in his claim before the Director. At the stage of the appeals to the Board, the Board’s decision of 13 August 2015 (on the appeal relating to BOR 3 risk, persecution risk and torture risk) was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, as well as on country of origin information. As for the Board’s decision of 30 November 2018 on the appeal relating to BOR 2 risk, the Board determined the appeal without a hearing, which it was permitted to do pursuant to s. 12 of Schedule 1A of the Immigration Ordinance (Cap 115) if the Board, having regard to the material before it and the nature of the issues raised, was satisfied that the appeal could be justly determined without a hearing. As noted above, the applicant did not submit any additional facts or material to the Director or to the Board in relation to the BOR 2 ground.

21.  In the court proceedings, as noted above the Judge held an oral hearing of the application for leave for judicial review on 13 May 2021 attended by the applicant. According to the court’s records, at that hearing the applicant answered questions from the Judge with the assistance of a Nepali language interpreter.

22.  In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided in fact resulted in unfairness.

23.  As this Court has repeatedly held, the high standard of fairness required by law does not mean that legal or interpretation service has to be made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

24.  In the present case, the Board rejected the applicant’s non-refoulement claim on the grounds of BOR 3 risk, persecution risk and torture risk based on its finding that the applicant’s evidence was unreliable and that he had never suffered any pain or suffering from his alleged enemies. The Board also found that internal relocation was viable and that reasonable state protection was available. The applicant did not bring any proceedings to impugn that decision of the Board.

25.  As for the Board’s decision relating to BOR 2 risk, which is the subject of the present proceedings, the Board dismissed the appeal because the it found that there was no evidence to support the applicant’s claims, which the Board considered to be bare allegations. On the facts and evidence of this case, these conclusions are open to the Board. The applicant has failed to show that they may be vitiated upon any reasonably arguable public law ground.

26.  The Judge also came to the conclusion, after careful consideration of the grounds advanced by the applicant, that there is no reasonably arguable ground for judicial review. He was right to refuse leave.

27.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons of 28 September 2021 is accordingly dismissed.