RE SHRESTHA SURESH

CACV 146/2022

[2022] HKCA 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 146 OF 2022

(ON APPEAL FROM HCAL NO 570 OF 2019)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J (“the Judge”)  set out in the Form CALL-1 dated 7 April 2022, by which the Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 962).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 14 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 19 October 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 19 April 2022, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Nepal.  He last arrived in Hong Kong on 8 April 2017 and was permitted to remain as a visitor until 15 April 2017.  He did not depart and overstayed since 16 April 2017.  On 15 May 2017, he surrendered to the Immigration Department for overstaying.  On 2 January 2018, he raised a non-refoulement claim on the basis that he would be harmed or killed by his creditors if returned to Nepal as he was unable to repay his debt.  Factual details of the applicant’s claim were summarised by the Judge at [4] - [5] of the Leave Decision.

5.  By a Notice of Decision dated 19 October 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  On 1 November 2018, the applicant appealed against the Director’s Decisions to the Board.  The applicant attended the hearing before the Board on 3 January 2019 and a Nepalese interpreter was present to provide language assistance.  The Board dismissed his appeal on 14 February 2019.  Having assessed the evidence, the Board found that the applicant’s evidence was inconsistent, unclear or implausible and not credible.  The Board did not accept the applicant’s account of the loan and the alleged threats to kill him.  The Board considered that there were no substantial grounds for believing that the applicant would be at real risk of harm if refouled and the applicant had failed to substantiate his claim on the applicable grounds.  Accordingly, his appeal was dismissed by the Board.

The Leave Decision

7.  On 28 February 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86[5], the applicant did not state any ground of review.  In his supporting affirmation, he only claimed that his life would not be safe in his home country.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.

8.  By the Leave Decision, the Judge refused to grant leave to the applicant to apply for judicial review. Her reasons were set out at [11] - [12] of the Leave Decision:

“11. Despite the the fact that the applicant did not submit any grounds of review, I have considered the papers and grounds carefully and objectively. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.[6]

12. This application is wholly without merit.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

9.  On 19 April 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“I am not satisfied with decision because its away form facts and reality which are related with my case. There is no any transparency in these decisions. Please accept my application and allow me to process further my case.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 19 April 2022, the applicant lodged his written submissions on 26 April 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He further claimed that his problem in his home country subsisted and that the police and the authorities used their political influence and it would be very difficult for him to get justice in that corrupt environment.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  At the outset, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Judge had erred in reaching the Leave Decision.  His allegations are directed at the Board’s Decision and are all bare, vague and unsupported by specific particulars or evidence.  They are not proper grounds of appeal.

14.  Further and in any event, his general and bare assertions of his fear if refouled to his home country do not constitute valid grounds of appeal. As repeatedly emphasised by the Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

15.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.