THAPA RAM KRISHNA v. TORTURE CLAIMS APPEAL BOARD

CACV 519/2021

[2023] HKCA 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 519 OF 2021

(ON APPEAL FROM HCAL NO. 298 OF 2021)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1)   The appeal

1.  This is an appeal against the decision dated 12 November 2021 of Deputy High Court Judge Bruno Chan who refused to grant extension of time for the application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 June 2020 and dismissed his leave application.

2.  Despite the directions of the Registrar of Civil Appeals of 10 January 2022 given to the applicant, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have his right to have an oral hearing waived, and have elected to have his appeal disposed of on paper. The hearing that was fixed for 15 March 2022 has been vacated. We will deal with the present application on paper based on the documents filed by the applicant.

2)   Background

3.  The applicant is a national of Nepal.  He entered Hong Kong on 27 July 2014 as a visitor. He was arrested by the police on 8 November 2014 for suspected overstaying, and raised a non-refoulement claim 1 day later[1]. The applicant’s non-refoulement claim was on the basis that if he returned he would be harmed or killed by members of the Maoist Party because he refused to donate to their cause[2].

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [3] of the CALL‑1 Form.

3)  The Director’s Decisions    

5.  The Director of Immigration (“the Director”) decided against the applicant’s claim on 14 November 2018.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3 and BOR 2”), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicant appealed / petitioned against the Director’s Decisions to the Board on 26 November 2018.  After a hearing held on 29 May 2019, the Board dismissed the applicant’s appeal / petition against the Director’s decisions on 24 June 2020.

7.  The Board held that the applicant’s account of events was hard to believe. It held that he was vague with dates and details of events that ought to have been crucial to his life. Other aspects of his account were illogical or were inconsistent with country of origin information[3]. The applicant also failed on all applicable grounds[4].

5)  Decision of the Judge

8.  The applicant filed a Form 86 with supporting affirmation before the Judge out of time.

9.  The Judge assessed the applicant’s documents and held that the applicant was more than 5 months late when he filed his application to the High Court asking for leave for judicial review.  The Judge did not accept the applicant’s explanations for the delay as the applicant provided no details or documentary evidence to support those claims.  As for merits, the applicant failed to put forward any proper ground for is intended challenge.  In the absence of error or irrationality or procedural unfairness, there were no merits in the intended application[5]. The Judge also considered that the Board rejected the claim essentially on its adverse finding on the credibility of the applicant and the Board had found that it was not unreasonable or unsafe for the applicant to relocate to other parts of Nepal.

6)  Grounds of appeal

10.  Doing the best we can to read the applicant’s hand written notice of appeal, the applicant stated in his notice of appeal that he was not satisfied with the decision of the Judge in that the law was not applied properly, such as the principle of irrationality. 

7)  Our view

11.  We will repeat the approach of this Court in dealing with cases of this nature:

(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 claims 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 (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 their decisions.

(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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

13.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.