RE GIRI YUBARAJ

CACV 78/2022

[2022] HKCA 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2022

(ON APPEAL FROM HCAL NO. 521 of 2019)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 4 February 2022[1] refusing to extend his time to apply for judicial review and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 28 November 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 15 February 2019 dismissing his appeal against the Director’s decision.

2.  The applicant has consented to the appeal being dealt with on the papers without an oral hearing. He had also on 3 March 2022 put in a written submission to support his appeal.

3.  The applicant is a national of Nepal aged 32. He entered Hong Kong on 22 September 2013 and was given permission to remain as visitor until 27 September 2013. He overstayed and was arrested by the police on 23 July 2014. He then raised a non-refoulement claim based on his fear of being harmed or killed by the Maoists because he had refused to quit the Unified Marxist and Leninist Party (“UML”) and to join the Marxists. His claim was set out in detail in the Director’s decision at [8] and the Board’s decision at [34] to [44], and summarised by the Judge in [5] to [10] of the Form CALL-1.

4.  In gist, the applicant claims that he was an active supporter of UML and assisted in its campaign during the April 2008 general election. The Maoist Party won the election and became the ruling party. Since May 2008, the applicant and his friends were accosted by the Maoist supporters who demanded that they changed their allegiance from UML to the Maoist Party. When they refused, they were assaulted, during which the applicant was wounded in his left rib and hand. In September 2008, they were set on by the Maoist supporters, who threatened to kill them if they did not join the Maoist Party. The applicant fled with his friends to Kathmandu, where he stayed until January 2010 when he went to Malaysia to work. In May 2013, he returned home and heard that the Maoists were still looking for him. The political environment was unstable due to the upcoming election. The applicant went back to Kathmandu and later left for Shenzhen from where he came to Hong Kong.

5.  By his decision dated 28 November 2017, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 3 risk^[4] and BOR 2 risk^[5] grounds.

6.  The applicant appealed the Director’s decision to the Board. The Board heard the applicant’s appeal at an oral hearing held on 4 December 2018 during which the applicant gave evidence and answered questions from the Board. By its decision dated 15 February 2019, the Board dismissed the appeal. In summary, the Board accepted it was plausible that the applicant was beaten up and threatened for refusing to join the Maoist Party, and that the local Maoists might bore a grudge against the applicant for refusing to join them. The Board, however, did not accept that they still bore a grudge against him and would be looking for him after all these years, considering that he was a person of no particular importance in the area or to the local Maoists. The Board also noted that the Maoists had lost in the 2014 election and have since become less powerful. The Board found, on the evidence, no objective basis to believe the applicant would face a real or substantial risk of being subjected to ill-treatment, torture, persecution or deprivation of life upon his return to Nepal, and concluded that his claim to non-refoulement protection was not made out under any of the applicable grounds.

7.  On 22 February 2019, the applicant filed a Form 86 and a supporting affirmation to apply for leave to judicially review the Board’s decision. His grounds for seeking relief were: (1) lack of language and legal assistance; (2) procedural unfairness as he did not understand the bundle for the hearing before the Board; and (3) the Board failed to provide reasons for its decision.

8.  The Judge heard the application at an oral hearing. On 4 February 2022, the Judge refused the application for the reasons he gave at [21] to [30] of the Form CALL-1 as follows[6]:

“Ground (1) - Lack of language assistance and legal assistance

21. In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar nor the judgment of FB v. Director of Immigration prescribes that a CAT claimant or 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 Applicant was prejudiced due to lack of legal representation before the Board.

22. Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh, the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.

23. Though the appeal bundle is in English, it is basically made up of the Applicant’s NCF, the record of his screening interview and the Director’s Notice, including the COI. The information in the NCF and screening interview was provided by him with the assistance of an interpreter and upon legal advice. At this hearing, the Applicant admitted he had no problem understanding the documents in the hearing bundle. The Notice was issued to the Applicant on 28 November 2017. It was not until 4 December 2018 that the oral hearing was held. The Notice is in English, though unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing more than twelve months to read and understand the documents and to seek assistance from among his own circle, if necessary. He also had the services of an interpreter at the oral hearing before the Board. As he admitted he had obtained assistance from his friends and had no problem understanding the documents in the hearing bundle, there is no substance in his complaint for lack of language assistance.

24. The Applicant complained that the Decision was not translated to him. He submitted that without knowing the reasons for the Decision, he does not know if the Board had provided adequate reasons in dismissing his appeal and he is deprived of the opportunity to make proper submission in his leave application now before the Court. What was decided was decided. Provision of translation after the Decision was made could not reverse the Decision. As for his complaint about difficulties in preparing for his leave application, he has almost three years to prepare for this hearing. He had ample time to seek assistance from within his own resources. As his well-written affirmation shows, he had access to language assistance.

25. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF and at the screening interview and in presenting his case to the Director. He therefore had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded them were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. 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.

26. Taking a global view of the circumstances, nothing amiss arose from the lack of language assistance and legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (2) – Procedural unfairness

27. In paragraph 8 of his affirmation, the Applicant said that as he was not given language assistance, he had to present his case based on his memory of events which occurred in Nepal a long time ago. He argued that this constituted procedural unfairness. This ground is also founded on his complaint about lack of language assistance which has been dealt with in the preceding section. It was his choice to come to Hong Kong where the official languages are English and Chinese. He has to cope with his language disability and seek assistance from among his friends and community. The high standard of fairness does not impose on the authority the burden to provide him with free interpretation service any time he wanted. As analysed in the preceding section, he had ample time to seek language assistance. There is no substance in this ground.

Ground (3) – failure to provide reasons for its Decision

28. In paragraph 10 of his affirmation, the Applicant quoted AM v Director of Immigration & Anor and submitted that the Board was in breach of its duty to ‘provide adequate reasons in his decision to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, any, evidence he regarded as irrelevant’.

29. That authority was in fact cited by the Board at paragraph 7 of the Decision when directing itself on the law. The Board precisely did that. As summarised in the above sections, for example, the Board (a) accepted the Applicant’s evidence of the assault and threat by Maoists and the evidence from the COI about the current situation in Nepal; (b) rejected his evidence that Maoists keep their grudge against him alive; (c) could not make up its mind whether he was arrested by or he voluntarily surrendered to the police; and (d) that his arrest or surrender is irrelevant.

30. Despite what is said in AM v Director of Immigration & Anor, the principle does not require the Board to make such an express finding in respect of each and every piece of evidence which is immaterial or unimportant. It is not necessary to do so if the conclusion is obvious reading the Decision. The Board did not, for example, expressly find whether the Applicant and each of his UML friends fled to Kathmandu, whether he went to Malaysia to take up employment, whether he hid himself in the hotel in Kathmandu and wearing face mask when he went out, etc. To do so would unduly and unnecessarily lengthen the Decision. It is obvious from reading the Decision that these are either accepted in favour of the Applicant or are irrelevant to the Board’s Decision. Insofar as the core issues are concerned, the Court was satisfied that the Board had adequately discharged its duty and there was no unfairness whether procedurally or in substance.

Conclusion

31. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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, unreasonableness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.”

9.  The applicant filed the notice of appeal on 16 February 2022. It stated the following as the grounds of appeal:

“The High Court did not find any error of Torture Claims Appeal Board decision. I will show some error.”

10.  The written submission stated that:

“[the Board’s] decision had many errors, for example, (i) short time, (ii) not clear of law, (iii) decision gave from [the Board’s] own opinion, not from any law, (iv) not gave me any lawyer, (v) not game to talk about my claim. I think the High Court did not read my application. I want to say the High Court judgment is not correct. I wish the Court of Appeal will grant my leave.”

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. Among them, the following are of particular relevance of this appeal:

(1) The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2) The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was 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 and/or the process by which the decision was made.

(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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal. Our reasons are as below.

13.  The complaints that the applicant made against the Board’s decision in his written submission were similar to the grounds he put forward to support his intended judicial review. It is evident from the very detailed reasons given in the Form CALL-1 (see [8] above) that the Judge had given careful and full consideration to these grounds and complaints. The applicant’s submission that the Judge did not read his application is clearly without basis.

14.  The Judge, after considering the applicable legal principles, decided that they were not arguable. He did not find any error of law, irrationality or procedural irregularity in the Board’s reasons and decision. He therefore concluded that there was no basis to disturb the Board’s assessment and finding that the applicant did not face any real or substantial risk of harm and that he failed to meet the requirements for non-refoulement protection under any of the applicable grounds. In this appeal, other than repeating the complaints against the Board, the applicant has not identified in what way the Judge’s reasons and conclusion were wrong.

15.  It is well established that evaluation of evidence and assessment of risk of harm are matters for the Board, who is the primary decision maker. The Court in a judicial review application may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. We agree with the Judge, for the reasons he gave, that the grounds put forward by the applicant do not afford any proper basis for disturbing the finding and conclusion of the Board.

16.  In any event, we have reviewed the Board’s decision. Like the Judge, we do not discern any error of law, irrationality or procedural unfairness or improprieties. The applicant’s intended judicial review has no reasonable prospect of success. The Judge was correct in refusing to give leave to apply for judicial review.

17.  For the above reasons, there are no merits in the appeal. Accordingly, we dismiss the appeal.