RE MALLA SURAJ

CACV 222/2024, [2025] HKCA 442

On Appeal From [2024] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 222 OF 2024

(ON APPEAL FROM HCAL NO 1591 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 30 May 2024 ([2024] HKCFI 1476)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 31 May 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 17 July 2018 (“the Director’s Decision”)  refusing his non-refoulement claim.[1]

2.  The appeal was listed to be heard on 25 September 2024.  The applicant was directed to lodge two sets of skeleton argument on or before 28 August 2024 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 5 August 2024.  However, the applicant did not lodge any skeleton argument in support of his appeal.

3.  As the applicant failed to lodge a skeleton argument by the stipulated time, the applicant was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 29 August 2024.

BACKGROUND

4.  The applicant is a national of Nepal.  He entered Hong Kong as a visitor on 15 February 2015 and was permitted to remain until 16 February 2015.  He overstayed and surrendered to the authorities on 19 March 2015.  On 27 March 2015, he raised a non-refoulement claim on the basis that he would be harmed by members of the Maoist Party because he refused to make donations.  Details of the applicant’s claim were summarised by the Judge at [4] - [9] of the Leave Decision.

5.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

6.  On 30 July 2018, the applicant appealed against the Director’s Decision to the Board.  On 18 February 2019, the applicant attended an oral hearing.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [10] - [19] of the Leave Decision:

“10. Despite finding the Applicant’s failure to seek prompt protection in Macau or in Hong Kong are detrimental to his credibility, the Board accepted the centrepiece of his case, ie that he was confronted by people claiming to be Maoists, threatened with harm because of his refusal to make donations, that he left his home village to stay in Kathmandu for three to four months to avoid the Maoists, that nothing eventful happened in Kathmandu and that he travelled to Macau and eventually to Hong Kong without incident on exit from Nepal.

11. The Board doubted whether the Maoist would still be interested in harming him in view of the significant lapse of time since the confrontation (five years as at the time of the appeal before the Board). As for the alleged attack on his father, the medical evidence was that he fell from height. There was nothing to suggest that the Maoists were even loosely linked to the injury.

12. According to authoritative and credible country of origin information (‘COI’), the Maoists have now merged with the ruling political party. As the Applicant’s father was elected as a ward member of the Village Council and his father’s political connection made his family friendly or ‘unified’ with the Maoists. With that connection, the Board did not expect his father would be harmed by the Maoists in his home village.

13. The fact that the Applicant was able to avoid any harm from the Maoists while staying in Kathmandu suggested that any risk of harm from the Maoists would be localised and he could avoid the risks to him by living outside his home village.

14. More importantly, the Board found that the past injuries suffered by the Applicant at the hands of the Maoists were relatively minor and did not attain the requisite threshold. That further suggested that the future risk of harm would be low.

15. The Board accepted on the basis of the COI that while questions remained over the effectiveness of the Nepalese police, the government had taken practical steps to maintain public order and safety and to improve the effectiveness of police. It was the Applicant’s own decision not to seek police protection against the Maoists and there was nothing to suggest that the police would have refused to help him had he sought help. There was no evidence to show that adequate state protection would not be available.

16. In relation to Persecution Risk ground, the Board noted that his disputes with the Maoists originated from a demand for donation, which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

17. In relation to BOR 2 Risk ground, it found that the Applicant was not the subject of any criminal investigation by the Nepalese government and he did not face any capital punishment upon his return. In relation to BOR 3 Risk ground, it found that he did not face any genuine risk of being subject to ill-treatment that attained the very high threshold necessary to entitle him to protection under BOR 3 risk. In relation to Torture Risk ground, it did not accept that there was any involvement or acquiescence by state officials because the Maoists were not state officials. The Applicant was able to depart Nepal with his passport through proper channels, which showed he was not targeted by the government.

18. The Board further held that any perceived risk of harm could be mitigated by internal relocation to Kathmandu or Pokhara. As an able-bodied, college-educated adult, it would not be unduly harsh to expect him to do so.

19.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM.  Hence, the Board dismissed his appeal against the Director’s Notice.”

THE JUDGE’S DECISION

7.  On 11 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  He gave no ground of review in his Form 86.  In his supporting affirmation, he only requested for an oral hearing with the assistance of a legal representative.

8.  On 6 November 2023, the court wrote to the applicant asking him to supply certain information and to make submissions.  No response was received from the applicant.

9.  An oral hearing was fixed before the Judge on 14 May 2024 with the assistance of a Hindi interpreter.  However, the applicant failed to attend the hearing.  By the Leave Decision, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [23] - [25] of the Leave Decision:

“23.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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; correctly identified the issues and observed a very high standard of fairness.

24.  The Board accepted the Applicant’s account as he asserted and that he was genuinely in fear of harm from the Maoists. The Applicant could not have any complaint about this finding of primary facts.  It also found on the basis of authoritative and credible COI that the Maoists Party have merged with the major political party in Nepal.  This is an incontrovertible fact.  Then on the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for his fears and his feared risk of harm is not real.  Furthermore, on the basis of the COI, the Board was satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real.  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 and irrationality.  Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM.  Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

25.  For the above reasons, leave to amend the Applicant’s notice of application for leave to apply for judicial review is granted, but the leave application as amended is refused.”

THIS APPEAL

10.  In his Notice of Appeal filed on 4 June 2024, the applicant complained that he was unfairly disadvantaged in comparison to other legally represented litigants.  He asserted that he did not receive any Notice of Hearing or the court’s letter regarding further submissions.  He also complained about the Judge’s failure to acknowledge his language incapability and that it was unfair as he was not provided with any language or legal assistance.  He submitted that his unawareness to name the Director instead of the Board as the proposed interested party indicated his handicap in English and that given his lack of assistance he was unable to elaborate on his grounds of judicial review.  He also complained that he failed to find any free legal representation and was not able to handle legal jargons.  He was only able to seek help from a friend who is familiar with English.  The lack of legal representation also made it impossible for him to specifically point out the error in the Leave Decision and that caused procedural unfairness to him.  He also requested for an oral hearing with an interpreter arranged.

11.  As mentioned above, by the Notice of Hearing dated 5 August 2024 sent to his last known address, the applicant was informed of an oral hearing to be heard before this court on 25 September 2024 with the assistance of a Nepalese interpreter.  The applicant was also required to lodge two sets of skeleton argument on or before 28 August 2024, failing which he would be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.

12.  As no response or written submissions was received from the applicant, the said hearing was vacated on 29 August 2024 and the applicant was informed of the same by the letter dated 29 August 2024.

DISCUSSION

13.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, supra, at [14(6)]).

14.  In our view, the applicant’s grounds of appeal have no substance.  At the outset, all his allegations are new and not raised before the Judge.  He fails to give any reason as to why these grounds are only raised on appeal and not in the court below.  It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].  The appeal can be dismissed on this basis alone.

15.  In any event, those allegations based on lack of language and legal assistance are without substance.  We note that all the court documents filed by the applicant in this appeal as well as before the court below are in English.  Clearly, the applicant is able to obtain assistance in English.  Moreover, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11]. Accordingly, there is no merit in these allegations and we see no prejudice suffered by the applicant from the lack of language or legal assistance.

16.  His allegations on the lack of oral hearing are also totally without merit.  The Notice of Hearing before the court below was delivered to the applicant’s last known address and was not returned undelivered by the Post Office.  However, he failed to attend the hearing before the Judge.

17.  For the above reasons, the applicant’s appeal has no merit and is hereby dismissed.