B v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 221/2022, [2023] HKCA 520

On Appeal from [2022] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 221 OF 2022

(ON APPEAL FROM HCAL NO 2271 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 16 May 2022, DHCJ K.W. Lung (“the Judge”)  gave a decision (“the Judge’s Decision”)  [2022] HKCFI 1306 in which he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 17 August 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 2 October 2015 and 13 February 2017.

2.  On 27 May 2022, the applicant filed a Notice of Appeal against the Judge’s decision.

Application for amendment of the Notice of Appeal

3.  On 3 October 2022, the applicant’s solicitors filed a summons for leave to amend the Notice of Appeal (“the Amendment Summons”)  as per an attached draft.

4.  On 15 November 2022, the Registrar of Civil Appeals directed that the Amendment Summons be dealt with at the same time as the appeal.

5.  As the draft Amended Notice of Appeal contained essentially the same arguments as the original, and detailed written submissions had been lodged on that basis, we give leave to amend the Notice of Appeal.

Background

6.  The applicant is a national of Nepal.  He was born in 1970.  His parents live in Nepal and he has 5 siblings, some of whom live outside Nepal.  He received education in Nepal and graduated from Class 12 in 1989.  He is married, and he and his wife have one child, a son now aged 23, who lives in India.

7.  From 1989 to 2007, the applicant worked in Nepal, Malaysia and Thailand, in various occupations as a waiter, machine operator, owner of a guest house, marketing staff in a travel agency, and clerk in an import/export company.

8.  The applicant said that in January 2008, for the purposes of obtaining an employment visa in Malaysia, he underwent a medical examination and was diagnosed as HIV-positive.  His application for a visa was refused, and he returned to Nepal in February 2008.

9.  In June 2008, the applicant went to India, where his son was studying and living, to seek medical treatment for his condition.  With the assistance of a non-government organization (“NGO”)  in Mumbai, the applicant was referred to a public hospital.  After observation, the applicant started to receive ARV (Antiretroviral)  medication on a regular basis.  His condition stabilized after 3 months’ medication.

10.  After one and a half years in India, the applicant went back to Nepal in early 2010 for financial reasons.  After he returned to Nepal, he continued to receive medical treatment for his condition from a Government hospital, which he attended once a month for medication, which was provided free of charge by the Nepalese government.

11.  The applicant did not disclose his condition to anyone, but he said he learnt from his friend that another friend RB had disclosed his condition to some other persons in his village.

12.  According to the applicant, after RB’s disclosure, around 3 to 5 villagers stopped socializing with him (although there is no evidence as to how many people lived in the village), and once when he tried to share a bench with those 3-5 villagers, they immediately left.  There was no evidence that any of them said anything hurtful when they did so.  As will be seen later, the Board found the attitude of those villagers was passive and not aggressive.

13.  From mid-2010, the applicant paid frequent visits to his son in India, and returned to Nepal for 1 to 2 days each time to get his medicines from the Government hospital free of charge.

14.  Although the applicant and his wife had separated at one stage, he learnt in mid-2011 that she was also diagnosed as HIV-positive.  They have reunited.  He believed that he had transmitted the virus to her. 

15.  In September 2011, the applicant attended a Christian conference in Hong Kong during which he met some asylum seekers, but as his visit was sponsored by the church, he did not wish to dishonour the church by over-staying and left Hong Kong before the expiry of his visa. 

16.  A few months later, the applicant left Nepal and arrived as a visitor in Hong Kong on 19 April 2012. He was permitted to stay for 14 days.  He approached the local United Nations High Commissioner for Refugees for registration before his visa expired.  As directed, he surrendered to the Immigration Department on 10 September 2012.  His wife also came to Hong Kong in 2013.

17.  On 19 March 2014, the applicant lodged a non-refoulement claim (detailed below), based on his condition.  At first, his claim included allegations that Maoists in Nepal would torture or kill him for being HIV-positive, but (as confirmed by Mr Benjamin Chan who appeared before us but not before the Board), these allegations were not pursued before the Board.

The Director’s decisions

18.  By a Notice of Decision dated 2 October 2015 and a Notice of Further Decision dated 13 February 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

Hearing before the Board

19.  The applicant lodged an appeal to the Board against the Director’s decisions.  He was represented by counsel from the Duty Lawyer Service.  Oral hearings for the applicant’s appeal were conducted on 28 June, 15 August and 8 September 2017.  The applicant gave oral evidence, and also called Mr. Darsi Jaya Raju (“Mr. Darsi”), a counsellor with Sagar Counselling Centre.

20.  It is not clear if Mr Darsi was being called as an expert witness.  Mr Darsi’s CV was attached to a “Counselling Report”.  Although the Board said in its Decision (referred to below)  that “Dr Darsi produced a medical report” (emphasis added)  [14], Mr Chan confirmed that Mr Darsi was not a doctor, and the Counselling Report was not a medical report.

21.  Mr Darsi was the applicant’s counsellor.  It does not appear from his CV that he is member of any professional body in Hong Kong.  More importantly, his assessment was based on statements made to him by the applicant, including the following statements set out in the Counselling Report.

(a)  After the applicant learnt that his wife also tested HIV-positive, “when he went home he was filled with fear and isolation as his home and community excommunicated him and tortured his wife and his son would not be able to study in any school” (emphasis added), as a result of which the applicant sent his son to school in India [5].

Pausing here, as will be seen later in this Judgment [30], the statement that he had been “excommunicated” by his home contradicted the applicant’s own evidence that he lived with his parents when he was in Nepal, he was financially supported by his sibling, he had reunited with his wife and he visited his son in India frequently.  Nor did the applicant produce any evidence that his wife had been “tortured”.  Further, as his son was studying in India in 2008, his allegation that he sent his son to school in India after he learnt in mid-2011 that his wife had also tested HIV-positive was inherently inconsistent.

(b)  “He lives in persistent guilt, fear of threat to his wife’s life, fear of forceful deportation and panic of being excommunicated and killed” [11] (emphasis added).  These statements of “threat to his wife’s life” and being “killed” were not pursued before the Board.

(c)  “If he were to return to his country, in addition to the psychological threat to his well-being, [the applicant] strongly believes that definitely he and his wife will be isolated, tortured and killed” [17] (emphasis added).  As noted above, these statements of “torture” and being “killed” were not pursued before the Board.   

The above incorrect and/or disavowed statements are significant because they were part of the case the applicant presented to Mr Darsi, on the basis of which the latter assessed him as suffering from post-traumatic stress disorder “caused by life threatening disease HIV and its related stress and discrimination” [16], and suggested that “deporting him back to his country, where there is no acceptance and lack right understanding [sic] of HIV patients, would thrust him back into an emotionally hostile environment with multiple triggers that would place him at an extremely high risk for a relapse of severe psychological symptoms”[5]. Therefore, even assuming that Mr Darsi could be regarded as an expert and that his “diagnosis” could be regarded as adduced in support of the applicant’s case, the falsity of the statements at (a)  to (c)  above completely undermine the “diagnosis”.

The Board’s decision

Medical treatment

22.  The Board accepted that the applicant was HIV-positive.  It found that prior to coming to Hong Kong, the applicant has been receiving, on a regular basis, effective treatment for his condition in Nepal free of charge, which was actually the same type of treatment he received in Hong Kong [24 - 25].

Personal support

23.  The Board found that the applicant was supported by his family.  He lived with his parents when in Nepal, he had reunited with his wife, he visited his son regularly in India and he also received financial assistance from a sibling [28].

Employment opportunities

24.  As for the applicant’s allegation that he would be refused employment because of his condition, his evidence before the Board was that in fact he had withdrawn from applying for jobs “for fear” that there “may be” a medical examination, he had in fact never attended any medical examinations when looking for a job, and he had never had experience of being refused a job because of his condition.  In light of that evidence, the Board did not accept his allegation [27].  As will be discussed below, however genuine may be an applicant’s self-stigmatization, his fear of persecution by reason of discrimination must be “well-founded”.

Attitude of 3-5 villagers

25.  Regarding the applicant’s evidence of discrimination from the time when 3 to 5 villagers left when he tried to share their bench, the Board found that the attitude of the villagers was passive and not aggressive, and they made no attempt to say anything against him [26].  Indeed, the Board was taking the applicant’s case at its highest, for there was no evidence that they chose to leave because they knew he was HIV-positive.

Finding on “torture” claim

26.  It was the assessment of the Board that even taking the applicant’s case (that he was depressed because of his condition)  at its highest, he had failed to establish from the evidence that his suffering had attained a minimum level of severity, physically or mentally, to amount to “torture’ [29].

Finding on BOR3 claim

27.  The Board found no evidence that the applicant would face inhuman or degrading treatment under BOR3 because of his condition if refouled.  The evidence showed that he had been receiving effective treatment from the Government hospital free of charge when he returned to Nepal from time to time after staying in India, and there was no evidence to show that he would not continue to receive this service after his stay in Hong Kong [35].  The Board found that the applicant had not suffered from any ill-treatment, physically or mentally and thus BOR 3 was not engaged [43].

Finding on BOR 2 claim

28.  The Board also found on the above evidence before it, that there was no risk to life under BOR 2.

Finding on “persecution” claim

29.  In assessing persecution risk in the applicant’s country on the basis that he was a member of a particular social group (viz HIV-positive persons), the Board found that on the applicant’s case, only 3 to 5 villagers stopped socializing with him, that was only their individual acts, and they were passive not aggressive [53].

30.  The applicant was not isolated. Apart from physically enjoying freedom of movement, emotionally he also had support from his family and friends.  When he was in Nepal, he stayed with his parents.  His sibling supported him financially.  He visited his son in India frequently.  One of his friends helped him find medical treatment in Thailand [54].

31.  The applicant was not deprived of his right to livelihood, as the Board found on the evidence he gave before it that it was he who did not look for jobs, and he had not been refused any job opportunities by reason of his condition [55].

32.  Further, as he received free and effective medical treatment from the Government hospital in Nepal, his condition did not affect his ability to make a living [56] - [57].

33.  It is notable that the applicant did not seek assistance from any government authority or NGO in Nepal (apart from the medical treatment he regularly obtained from the Government hospital).  There is therefore no evidence as to what other assistance he would have obtained had he done so.

34.  Among the country of origin information (“COI”)  materials available to the Board, it referred in the Decision to (among other excerpts)  two reports made in 2012 and 2015:

(i)  An article issued by the Worldbank.org HIV/AIDS in Nepal (10 July 2012)  showed the dynamic development of the Government’s approach to HIV strategy.

- In 1988, the government of Nepal launched the first National AIDS Prevention and Control Program.

- In 1992, it established a multi-sector National AIDS Coordination Committee (“NACC”)  chaired by the Minister of Health.

- In 1995, a national policy was formulated, emphasizing the importance of multi-sectoral involvement, decentralized implementation, and partnership between the public and private sectors including NGOs. 

- In 2002, a National AIDS council (“NAC”)  chaired by the Prime Minister was established to raise the profile of HIV/AIDS.  The NACC reports to the NAC.  They cover different areas of responsibility.  District Development Committees were also formed to implement and monitor HIV projects.  

- The national strategy for 2006 – 2011 was reviewed by the National Center for AIDs and STD Control (the main government agency responsible for HIV)  under the Ministry of Health and Population.

- The National HIV/AIDS strategy for 2011-2016 highlighted, among other things, treatment and support in Nepal.  The goal is to attain universal access to HIV prevention, treatment, care and support with specified targets.  

(ii)  The Country Reports on Human Rights Practices for 2014 – Nepal, issued by the US Department of State on 25 June 2015.

-  There was no official discrimination against high-risk groups that could spread HIV.

-  Social acceptance of people with HIV increased largely due to government-sponsored awareness programs.

35.  The Board found that the Nepalese government was highly concerned with HIV, and had taken steps to protect HIV patients and counter discrimination in Nepal.

36.  Before the Board, the applicant’s counsel had referred to:

-  an Australian Refugee Review Tribunal case 0903707 [2009] RRTA 758 (18 August 2009)  (“0903707”)  regarding discrimination of HIV patients in Vietnam;

-  another Australian RRT case 1100816 [2011] RRTA 356 (3 May 2011)  (“1100816”)  regarding discrimination in South Africa; and

-  a (differently constituted)  Board decision USM 2240/15/9/93/P623 (27 February 2017)  (“P623”)  regarding discrimination in Pakistan.

The Board did not find the Australian cases applicable as the country circumstances were not the same, and P623 was not binding or of persuasive effect [59].

37.  Having considered the evidence as a whole, the Board found that the applicant did not suffer discrimination such as to prove a well-founded fear of persecution for a reason enumerated in Article 1A(2)  of the 1951 Refugee Convention [60].

38.  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds and dismissed his appeal.

The Judge’s Decision

39.  On 19 October 2018, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.  No grounds for relief were set out in that form, nor in his affirmation which simply said that he did not agree with the Board’s decision.

40.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  In his Decision, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [16] – [21] of the Form CALL-1 as follows:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  …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 (and the Director). 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.”

19. The applicant has not been able to give valid reasons to challenge the Board’s Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

41.  The Amended Notice of Appeal contained four grounds of appeal summarized as follows:

(1)  The Board failed to specifically assess or examine the expert evidence given by the applicant’s psychological counsellor Mr Darsi who opined that the applicant has “prominent symptoms of anxiety caused by HIV-related stigma and discrimination. and the applicant’s problems are consistent with post-traumatic stress disorder (“PTSD”). The Judge had failed to find that the Board erred in law by failing to have regard or adequate regard to evidence relevant to discrimination, and whether the applicant’s psychological problems amounted to pain or suffering that would meet a minimal level of severity, which are matters that directly related to fear of persecution and BOR 3 risk.

(2)  The Judge failed to find that the Board erred in law by failing to recognize or take into consideration the relevant COI that HIV stigma and discrimination were serious problems in Nepal, and that they were consistent with the applicant’s past experiences of HIV stigma and claimed fear of discrimination.

(3)  There was COI suggesting that there was no legislation in Nepal to safeguard the rights of people living with HIV, but the Board appeared to have overlooked it, and was only concerned with assessing and determining the applicant’s physical safety and security, freedom of movement, right to livelihood, and the availability of free HIV care or medical treatment.  Thus the Judge failed to find that the Board erred in law by failing to assess and determine whether state protection was adequate and effective in light of the lack of legal protection of the rights of people living with HIV in Nepal, or the applicant being a member of a particular social group (people living with HIV).

(4)  In P623, the Board had ruled in favour of a Pakistani claimant who was living with HIV and found that the claimant has a well-founded fear of being persecuted for reason of membership of that particular social group.  The Board in the present case did not consider the case despite its relevance on the basis that the case was not binding and was not of persuasive effect.  Therefore, the Judge failed to find that the Board was irrational or had been procedurally unfair in giving scant or no consideration to P623.

Discussion

Ground 1

42.  It was contended by the applicant that the Judge erred in finding that there was no error of law or procedural unfairness in the Board’s decision, even though the Board had failed to explain how it assessed and/or weighed Mr Darsi’s evidence[6] and made no ruling or determination on it.[7]

43.  In fact, the Board had set out the contents of the Counselling Report extensively at [14] of the Decision. The Board referred to “HIV-related Stigma” and “HIV-related discrimination” as two separate matters in that paragraph.  Importantly, it noted that “Dr [sic] Darsi stated in the oral hearing that the situation of the [applicant] was mainly caused by the HIV Stigma” (emphasis added).  In light of the Board’s emphasis on this piece of evidence, we reject the argument that it had failed to assess Mr Darsi’s evidence, because given that oral evidence, the Counselling Report did not assist the applicant’s case on discrimination.

44.  In any event, as noted in [21] above, Mr Darsi’s “diagnosis” was based upon incorrect and/or disavowed statements made to him by the applicant, and the Board would have been entitled to place little or even no weight on it.

Grounds 2 and 3

45.  Grounds 2 and 3 can be dealt with together as they relate to the Judge’s examination of the Board’s assessment of COI.  Mr Chan submitted that the Board only referred to some COI stating that the Nepalese government has been providing support to HIV-positive persons and thus reached the conclusion that there was no discrimination against HIV-positive persons in Nepal, but not COI suggesting that HIV-related stigma and discrimination was a serious problem in Nepal, and there was no legislation in Nepal to safeguard the rights of people living with HIV.

46.  First, we note that the absence of legislation to safeguard the rights of people living with HIV in Nepal was not argued before the Board, as shown in the Grounds of Appeal dated 14 October 2015 and the written submissions dated 20 June 2017 lodged by the applicant’s then counsel. 

47.  Further, the hearing bundle before the Board contained copious COI materials published at different times, in varying degrees of detail, by different organizations.  In Re: Kartini which the judge had cited in his Decision, the Court of Appeal held:

“13. (1)  … 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 (and the Director). 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.” (emphasis added).

48.  It was the task of the Board to consider the applicant’s own evidence of discrimination for the purpose of assessing whether there was a risk of persecution, and to review the COI to see whether the applicant’s fear of being persecuted was “well-founded”.

49.  In the present case, the Board’s assessment of the applicant’s evidence is set out at [52] – [61] of its decision.  These included factors discussed in [29] - [32] of this Judgment which will not be repeated here.  The Board noted the COI materials discussed in [34] above, and concluded that the applicant’s fear of being persecuted was not “well-founded”.

50.  In our view, the mere fact that the Board did not address and discuss each and every piece of COI placed before it is not in itself a ground for judicial review.  It is not within the Board’s remit to attempt to reconcile those materials, nor is it bound to choose only those materials which are favourable to the applicant’s case because, as noted above, the materials come from different sources, are published at different times, contain different degrees of detail, and have different depth and perspectives.  It is not fair to the Board to argue that because it has not specifically referred to one particular piece of information, that it was “overlooked”.  The Board is not expected to give a summary of all the materials it has been provided with, just to prove that it has considered them all.  The purpose of the COI is to see, by reference to independent objective materials, whether the applicant’s alleged fear of being persecuted due to discrimination was “well-founded”.

51.  As far as the judge is concerned, his task is to see if there has been any error in law, or procedural unfairness, or irrationality in the Board’s assessment of the COI.  None has been identified.

52.  Grounds 2 and 3 are accordingly not established.

Ground 4

53.  Mr Chan submitted that the Board had unnecessarily fettered its discretion by disregarding P623 and two decisions of the Australian Refugee Review Tribunal.

54.  As a matter of principle, an administrative tribunal is not bound by its previous decisions or the decisions of its predecessor in the sense that courts are bound by stare decisis, and as such the Board is not obliged to consider or follow other decisions of a different constituted Board.

55.  In any event, decisions should not be relied upon for the facts. As noted above, 0903707 was a case on discrimination in Vietnam in 2009, 1100816 was a case on discrimination in South Africa in 2011, and P623 was a case on discrimination in Pakistan in 2017, and in matters such as the availability of free medical treatment, the family’s acceptance of the applicant in question, the effect on his accommodation and livelihood, and incidents of active social intimidation, these cases are clearly different from the present one.

56.  Therefore, Ground 4 is also not established.

Order

57.  For the reasons set out above, the appeal is dismissed with no order as to costs.