RE TAMANG LAXHI BAL

CACV 88/2022

[2022] HKCA 1055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2022

(ON APPEAL FROM HCAL 2736 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) set out in the Form CALL-1 dated 15 February 2022 ([2022] HKCFI 484) refusing his application for leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 May 2017 rejecting the applicant’s non-refoulement claim on the BOR 2 risk ground.

3.  The applicant is a national of Nepal. He arrived in Hong Kong on 15 July 1997 and was permitted to remain initially as a visitor and later as a dependant. His permission to remain ended on 7 April 1999, but he did not depart and has since overstayed. On 10 January 2010, he was arrested by the police. By a written representation dated 12 January 2010, he raised a non-refoulement claim based on his fear of being subjected to torture in Nepal. The applicant’s claim was set out in detail in the Director’s first decision, and summarised by the Judge at [1] to [5] of the Form CALL-1.

4.  By a decision dated 27 January 2015, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.

5.  The applicant’s appeal against the Director’s decision to the Board was heard on 22 June 2016. By its decision, dated 27 February 2017, the Board dismissed the appeal on 27 February 2017.

6.  Subsequently, the Board further assessed the applicant’s claim under the BOR2 risk ground[4], and by its further decision dated 11 May 2017 decided against it.

7.  The applicant appealed the Director’s further decision to the Board. His appeal dealt with the appeal on paper, and by its decision dated 21 September 2018 dismissed it. In essence, the Board considered that the applicant’s claim was based on sheer speculation and bare assertions without any supporting facts. In any event and importantly, on the facts, the applicant’s claim did not engage BOR 2, and failed to establish a personal and real risk of the applicant being arbitrarily deprived of his life in violation of BOR 2 upon his return to Nepal.

8.  On 3 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision of 21 September 2018. As summarised by the Judge at [12] of the Form CALL-1, the applicant relied on the following grounds for relied:

“(1) Misdirection in Law in that the Adjudicator misdirected himself 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;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Nepal;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Nepal and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure. “

9.  The Judge heard the application at an oral hearing on 25 January 2022, and by his decision dated 15 February 2022 refused to grant leave to apply for judicial review. For the reasons he gave at [13] to [18] of the Form CALL-1, he was of the view that the intended judicial review had no reasonable prospect of success:

“13. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply the correct standard of proof, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended application either.

14. As for his complaints of not being provided with legal representation or oral hearing for his BOR 2 Claim either before the Director or the Board, for the former the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

15. The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his first appeal to the Board without difficulty, and that as correctly found by the Board in its second decision that even on his own case that his claim did not engage the BOR 2 ground that it would not have assisted or advanced his case even if he were given further legal representation as well as another oral hearing for his second appeal before the Board which retained sole discretion as to whether another oral hearing would be necessary. In the circumstances and for the reasons given, I do not find any procedural unfairness in the Board’s decision not to hold another oral hearing for the Applicant’s appeal regarding his BOR 2 Claim.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

10.  On 23 February 2022, the applicant filed a Notice of Appeal in support of his appeal against the Judge’s decision. The Notice of Appeal gave the following as the grounds of appeal:

“… the [applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  The written submission lodged on 10 May 2022, the applicant filed his written submissions on 10 May 2022 quoted extensively from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and contended that high standards of fairness were required in the determination of a torture claim.

12.  We heard the appeal on 6 July 2022. During the hearing, the applicant indicated he had nothing to add to what had been submitted in writing.

13.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  Neither in his notice of appeal nor written submission has the applicant identified any error in the Judge’s reasoning and decision. His grounds of appeal and arguments are mere general and non-specific assertions.

16.  Further, it is well-established that assessment of risk of harm, and evaluation of country of origin conditions are primarily within the province of the Board (and the Director) as primary decision makers. 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. The complaints made in the grounds of appeal do not engage with the reasons given by the Board for refusing the appeal against the Director’s assessment under the BOR 2 risk grounds.

17.  Moreover, it has been shown how the legal principles cited in the written submission relate to the present appeal.

18.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.