MAGAR RUDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD

CACV 204/2021

[2021] HKCA 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2021

(ON APPEAL FROM HCAL NO 2223 OF 2018)

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JUDGMENT

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

INTRODUCTION

1.  On 16 April 2021, DHCJ Bruno Chan (“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 6 September 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 9 August 2016 and 14 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 30 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

3.  Pursuant to the Court’s directions of 2 July 2021, the applicant was required to lodge his written submissions on or before 16 August 2021 but he failed to do so.  The Court further directed that in the event the applicant failed to lodge his written submissions, he would be deemed to waive his right to have an oral hearing of this appeal and elect to have this appeal disposed of on paper.  As it is appropriate to do so, we now proceed to consider this appeal on paper only.

BACKGROUND

4.  The Applicant is a national of Nepal.  He arrived in Hong Kong on 5 November 2013 as a visitor.  He overstayed and was arrested by the police on 5 July 2014.  He was later referred to the Immigration Department for investigation.  On 6 July 2014, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Communist Party of Nepal (“the Maoists”) for being a former soldier of the Nepalese government and/or by the local gangsters over a dispute concerning a construction project.  The factual background of this case was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2021] HKCFI 1042).

5.  By a Notice of Decision and a Notice of Further Decision dated 9 August 2016 and 14 July 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

6.  The applicant appealed the Director’s decisions to the Board.  He attended an oral hearing on 5 September 2017.  For reasons given in its decision of 6 September 2018, the Board dismissed the appeal.  In its decision the Board accepted that the applicant had been in the Nepal Army from 2003 to 2007 which was the target of attack by the Maoists[5]. However, the Board did not accept that the applicant was at risk anymore as the Maoists insurgency had come to an end since 2006 with no further report of insurgency related violent incidents having occurred since 2013.  It was implausible that after all these years any Maoists would still pose any risk of harm to the applicant upon his return to Nepal.[6] Regarding his claim that he would be harmed by gangsters because he disagreed with their involvement in a bridge construction project he worked on in 2008, the Board found that his evidence was inconsistent and vague and that he had exaggerated the criminal elements involved in the project for the purpose of advancing his non-refoulement claim.[7]  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

DECISION OF THE COURT BELOW

7.  On 12 October 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   The Director was biased against him by adopting a formulaic approach in assessing his non-refoulement claim in finding that he had only encountered threats from the Maoists once without taking into account of their powers to pose serious risks to him.

(2)   Lack of legal representation for his claim based on BOR 2 risk before the Director or for his appeal to the Board.

(3)   Lack of language assistance for his BOR 2 claim or his appeal to the Board including no translation of the documents in the hearing bundle for his appeal before the Board and failure to achieve high standards of fairness in assessing his claim.

8.  The Judge heard the application on 1 December 2020.  By his decision dated 16 April 2021, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 as follows:

“11. For his complaint under Ground (1) that the Director had taken a formulaic approach in underestimating the risk of harm from the Maoists, the Applicant failed to provide any particulars or elaboration how it was so, and given the Director’s unchallenged finding based on reliable COI of the peace accord reached between the Maoists and the Nepalese Government since 2006 with no further reports of their insurgency related incidents since 2013 that it is implausible for there to still be any risk of any adverse interest in the Applicant after all these years that this complaint of the Applicant is simply not arguable at all.

12. As for his complaint in Ground (2) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard 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 367, and Re Zafar Muazam [2018] HKCA 176.

13. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable.

14. As for his complaint under Ground (3) of not being provided with a translation of those documents from his hearing bundle for his appeal before the Board, he would have by then been familiar with most of them which had earlier already been provided to his lawyer from DLS in his process before the Director, while his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board on all the applicable grounds including his BOR 2 Risk. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, plus the fact that even on his own case that his claim would not engage the BOR 2 Risk at all, I find this complaint of the Applicant simply speculative and without basis.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

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

17. 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.”

APPEAL TO THIS COURT

9.  On 30 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

(1)   The Court and the authorities did not exercise caution and diligence in handling his case.[8] (Ground 1)

(2)   The Judge’s decision was biased and erroneous.[9] (Ground 2)

(3)   There was a lack of language and legal assistance.  As he was unable to read and write English and the Judge’s decision was not translated and explained to him, it was difficult for him to prepare the appeal without any assistance and he was deprived of the opportunity to advance proper ground(s) of appeal.  He requested the Court for language assistance and an oral hearing with an interpreter arranged for him. He also reserved his right to provide further submissions within reasonable time upon having the determinations read back to him.[10] (Ground 3)

(4)   It is procedurally unfair that there is no other revenue for a non-refoulement claimant to seek an appeal against a decision based purely on credibility.[11] (Ground 4)

LEGAL PRINCIPLES

10.  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

11.  Grounds 1 and 2 are vague and general accusations without any specifics or elaboration.  The Judge duly set out the relevant factual background of the applicant’s case and the findings of the Director and the Board and gave his reasons for rejecting each ground of review put forward by the applicant.  We found no errors of law or procedural unfairness or irregularity in the Judge’s decision.  Grounds 1 and 2 are rejected.

12.  Ground 3 is devoid of merit.  The Court of Appeal has held that the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and/or the judgment of FB v Director of Immigration HCAL 51/2007 does not require that a non-refoulement claimant should have an absolute right to free legal representation at all stages of the proceedings: see 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.  The applicant had free legal assistance in relation to the assessment of his non-refoulement claim by the Director. Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board and the consideration of his intended grounds for judicial review by the Director and the Judge respectively were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.

13.  Regarding the applicant’s complaint of lack of language assistance, we note that all the court documents in relation to the judicial review application and this appeal were written in English and sufficiently expressed, indicating that the applicant is either familiar with the English language or has access to such language assistance as needed.

14.  Further, the Court of First Instance provided interpretation service and reasonable opportunities to the applicant to make his oral submissions at the hearing below.

15.  Ground 4 is likewise devoid of merit.  The Applicant has already exercised his right of appeal against the decision of the Director to the Board.  Such appeal is in the nature of a re-hearing.  The fact that there is no further right of appeal against the Board’s decision (on whatever ground) is not a valid ground of judicial review against the Board’s decision.  On the other hand, the Applicant is entitled, and has exercised his right, to seek leave to apply for judicial review of the Board’s decision. There is no unfairness in the whole process of the determination of the applicant’s claim for non-refoulement protection.

16.  Having considered the materials before us, we are of the view that the Judge’s observations and conclusions are fully justified.  We are satisfied that the Judge reviewed the Board’s decision with vigorous examination and anxious scrutiny, and was right to refuse leave to apply for judicial review.

ORDER

17.  For the above reasons, this appeal is dismissed.