RE LIMBU BIRKHAMAN

CACV 402/2018

[2019] HKCA 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 402 OF 2018

(ON APPEAL FROM HCAL 433/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 8 August 2018, refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order of 11 October 2018, the hearing for this appeal (originally fixed for 6 December 2018) was vacated and this appeal is processed on the papers based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307. 

3.  This is our judgment.

Background

4.  The applicant is a national of Nepal.  He tried to enter Hong Kong on 7 December 2013 but was refused permission to land.  On the same date, he raised a torture claim and a claim based on cruel, inhuman, or degrading treatment or punishment.  His claims were taken to be a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

5.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by Maoists because of his leaving them after being a Maoist soldier himself from 2003 to 2005.  The background of this case was summarized by the judge in [4] – [8] of the CALL-1 Form dated 8 August 2018 (published as [2018] HKCFI 1742).

6.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, namely, the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4], and determined the risks against the applicant.

7.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.  An oral hearing was held on 20 March 2017.    After hearing the applicant, the Board found that his evidence neither credible nor reliable, and that his case was speculative and without support.  Having considered the relevant country of origin information (“COI”), the Board also found that state protection was available to the applicant.  Internal relocation was also a viable option for him.  The Board therefore dismissed the applicant's appeal.

The judge’s decision

8.  On 21 July 2017, the applicant applied to the court for leave to apply for judicial review.  In the Form 86, the applicant advanced the following grounds for seeking reliefs:

(a)  Against the Director’s first decision: the Director (i) failed to examine and give sufficient weight to the extended concept of state acquiescence, and (ii) erred in concluding that state protection was available by failing to give weight to the COI materials regarding the corruption of the Nepalese police and the absence of a realistic avenue to complain about the ineffectiveness of the police, and (iii) failed to attain the high standards of fairness as required by law;

(b)  Against the Board’s decision: The Board (i) failed to attain the high standards of fairness because the applicant was not given legal representation before it, (ii) failed to examine or give sufficient weight to the extended concept of state acquiescence, and (iii) erred in speculating that state protection was available; and

(c)  Against the Director’s second decision: the Director failed (i) to take into consideration of the applicant’s lack of legal representation and the fact that he was under mental stress, and (ii) to take into account the substantive merits of an appeal (sic).

9.  The judge heard the application on 14 November 2017.  Having heard the applicant and after giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [18] to [25] of the CALL-1 Form:

“ 18. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and the adjudicator’s decision to be without fault. They analysed material, claims and evidence carefully. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

19. In the affirmation, against the Director’s decision dated 21 July 2015, the applicant submits the Director failed to properly consider the extended concept of State acquiescence and State protection. The applicant made no complaint to the police or any authority. He did not rely on the extended concept of State acquiescence therefore the adjudicator did not need to consider this concept. This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

20. As for State protection, the Director considered up-to-date, relevant and objective COI to find there was State protection available to the applicant if he was at any risk. A reading of the Director’s decision shows he fully considered it. There is no merit in the grounds put forward against the Director.

21. One of the grounds against the Director is that he failed to attain the high standard of fairness required. One of the issues to be considered in deciding whether to grant leave is whether the decision-maker adhered to a high standard of fairness as required. However, here there are no particulars from the applicant and I find no evidence of procedural unfairness, nor a failure to adhere to a high standard of fairness.

22. The last ground against the Director relates to his later decision to reject the applicant’s BOR 2 risk and he submits the decision was unlawful because the applicant was not legally represented and under a lot of mental strain. The applicant was legally represented when his claim was processed before the Director. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases; their assessment is on a case-by-case basis. There is no evidence from the applicant that he even applied for legal representation and was rejected. The Director’s assessment of the applicant’s BOR 2 risk did come later but it was not the applicant’s case that he ever relied on a BOR 2 risk claim from the outset. This ground has no merit.

23. The grounds against the adjudicator’s decision similarly submit her decision was unlawful because the applicant was not legally represented during the appeal process. Again, as I have said in the paragraph above, the fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. Once again, there is no evidence from the applicant that he even applied to the Duty Lawyer Scheme for legal representation and was rejected. There is no merit in this ground.

24. The other two grounds can be dealt with together; the adjudicator failed to properly consider the extended concept of State acquiescence and the adjudicator’s decision there is State protection available is merely speculative. The adjudicator gave full reasons for rejecting the applicant’s evidence and finding him unreliable. As I have said above, the applicant did not make any report to the police or any authority and he did not rely on the extended concept of State acquiescence. Despite the adjudicator’s finding on credibility, she did consider COI, in relation to the police party politics and its history which had a direct correlation to State protection and internal relocation. There is no merit in these grounds.

25. I do not find any ground that shows there was an error of law by either the Director or the adjudicator.  I see no evidence of procedural unfairness, nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable. In my judgment, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave to apply for judicial review is refused.”

The appeal

10.  The applicant filed a notice of appeal on 16 August 2018.  In it, the applicant advanced the following grounds of appeal:

“ 1. The learned Judge has erred in concluding that there was no failure to adhere to a high standard of fairness. At common law, there are minimum standards of procedural fairness required in decision-making process. The decision-maker is under a duty to act fairly.

2. The learned Judge erred in concluding that there were no merits in the Applicant’s complaints against the Director and the Adjudicator in relation to the concept of State Acquiescence and State Protection.”

General Principles

11.  For the purpose of this appeal, we would highlight the following salient propositions for the approach that this Court has adopted in determining an appeal of non-refoulement cases:

(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 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 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 (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.

(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 we 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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

12.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on the applicant’s credibility.  Furthermore, as explained, the assessments of state protection and internal relocation are within the province of the Director and the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds.  The judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the Board’s decision.

13.  The only ground advanced by the applicant to support his claim that high standards of fairness were not attained was lack of legal representation for proceedings before the Board. The judge had adequately addressed this matter at [23] of the CALL-1 Form. Such holding is in line with the decision of this Court in Re Zunariyah [2018] HKCA 14, Ali Asad v Torture Claims Appeal Board [2018] HKCA 39.

14.  On the facts of this case and in light of the Board’s adverse finding on the applicant’s credibility, there is no basis for the application of the concept of state acquiescence, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16] – [18]. 

15.  On the whole, the applicant fails to pinpoint any errors in the judge’s decision.

16.  We agree with the judge that leave to apply for judicial review should be refused.

17.  For these reasons, we dismiss the appeal.