RE JYOTI GURUNG

CACV 161/2022

[2022] HKCA 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2022

(ON APPEAL FROM HCAL 407/2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 April 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was purportedly against the decisions of the Director of Immigration (“the Director”) dated 31 December 2014 and 31 October 2016 (“the Director’s Decisions”) rejecting the applicant’s non-refoulement claim, the appeal against which was dismissed by the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) by a decision dated 25 January 2019 (“the Board’s Decision”).

Background

2.  The applicant is a national of Nepal. She entered Hong Kong illegally on 3 January 2008 and surrendered to the Immigration Department on 16 June 2008.  Thereafter, she lodged a torture claim on 5 November 2008.

3.  The applicant’s claim was based on a fear of being harmed or killed by her creditor.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of the Judge’s decision (“the CALL‑1 Form”)[1].

4.  By a Notice of Decision dated 31 December 2014 and a Notice of Further Decision dated 31 October 2016 (i.e. the Director’s Decisions), the Director decided against the applicant’s claim.  The Director’s Decisions covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  The appeal was initially against its Director’s Decision of 31 December 2014, but as the Further Decision of 31 October 2016 was given before the appeal, the Board treated the appeal as being against both decisions.  After a hearing on 14 December 2016, the Board dismissed the appeal on 25 January 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that there were discrepancies and inconsistencies in the applicant’s evidence which undermined her overall credibility.  In any event, the Board found that there were viable options of internal relocation for the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 13 February 2019 purportedly seeking to judicially review the Director’s Decisions but did not set out any grounds for judicial review. 

7.  In the applicant’s supporting affirmation, she simply exhibited copies of the Director’s and the Board’s Decisions.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  As the Director’s Decisions had been superseded by that of the Board.  The Judge treated the application as being in respect of the Board’s Decision.   The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [14] of the CALL-1 Form:

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

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

13.  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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 26 April 2022, the applicant merely stated:

“I want to appeal for Judicial Review.”

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 10 May 2022, in which she simply stated that she was dissatisfied with the Board’s Decision, and repeated the dangers she may face should she be refouled to Nepal.

Discussion

12.  The Judge in his decision observed:

“10.   On 13 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both decisions of the Director, but as they had been superseded by her subsequent appeal to the Board and hence are no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall therefore treat her application as one against the Board’s decision instead, but for which she did not put forward any ground for seeking relief in her Form or supporting affirmation, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.”

13.  In Re Moshsin Ali [2018] HKCA 549, McWalters JA (as he then was), after noting the features of the two-tier administrative structure for the processing of torture claims under the Immigration Ordinance (Cap 115), commented that:

“45.   All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.  We therefore agree with the Judge’s treatment of the applicant’s intended judicial review to be one which is against the Board’s Decision.  Accordingly, we shall also treat this appeal as an appeal against the refusal of leave for judicial review against the Board’s Decision.

15.  The applicant has in her Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

16.  In her application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

17.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge carefully considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

18.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.