RE ACHARYA ISWOR

CACV 249/2021

[2021] HKCA 1765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 249 OF 2021

(ON APPEAL FROM HCAL 2792 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge To (“Judge”)  on 30 April 2021 (“Judge’s Decision”)  refusing to grant leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 29 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of his non-refoulement claim (“NRF Claim”)  on 30 November 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nepal, is a fear of being harmed or even killed by his former business partner, Bhoj Bahadur Lama (“Lama”), over a monetary dispute.

3.  The circumstances allegedly giving rise to such fear were set out in detail in paragraph 6 of the Director’s Decision and in gist in paragraphs 6 to 10 of the Board’s Decision and [6] to [9] of the Judge’s Decision in the Form CALL-1 [2021] HKCFI 1212 (“Form CALL-1”).  Briefly:

(1)  Lama was a local leader of the Congress Party (“CP”).

(2)  In 2015, the applicant partnered with him to carry on land trading.  They did not sign any written contract.  There was only an oral agreement to share the profits equally.

(3)  Out of trust in Lama, the applicant invested 10 million Nepalese rupees and agreed to have the land(s)  put into Lama’s name.  To fund this investment, the applicant borrowed 3.5 million Nepalese rupees from 2 friends. 

(4)  Within the first month, each partner earned a profit of 1.2 million Nepalese rupees. 

(5)  Lama mentioned another potentially profitable deal and asked the applicant to invest more money after 3 to 4 months.  This time, the applicant invested 11 million Nepalese rupees.  

(6)  Lama then became uncontactable for 4 to 5 months.

(7)  One day in late 2015, the applicant bumped into Lama on the street.  He asked for Lama for his money back as he was hard pressed to repay his 2 friends.  Lama ignored the applicant, taking advantage of the absence of written evidence of his investments. 

(8)  The quarrel continued fiercely over the phone. One day, the applicant was assaulted by 5 to 6 strangers with knives.  Believing that Lama sent them, the applicant complained to the police, which took no action.

(9)  The applicant moved to Boudha in Kathmandu in the end of 2015 for his safety.  He stayed there for about 6 months, during which he received harassing phone calls from people claiming to be CP members.  He started to avoid calls from unknown numbers. 

(10)  After being told by his old neighbours that some strangers had come to ask for his whereabouts, the applicant feared that he might soon be located and harmed.  He fled Nepal for China on 3 June 2016.

(11)  Before he left, Lama called to threaten to kill him if he saw him.

(12)  The applicant’s family has told him that both Lama and the 2 friends who had lent him money had asked for his whereabouts but they did not hurt the applicant’s family.

Illegal entry into Hong Kong and lodgment of NRF Claim

4.  The applicant entered Hong Kong illegally on 28 October 2016.  He surrendered to the Immigration Department on 2 November 2016.  He raised the NRF Claim by written representations dated 11 November 2016 and 2 December 2016 and submitted a Non-Refoulement Claim Form dated 3 October 2017 (“NCF”), which was completed with the help of the Duty Lawyer Service (“DLS”).

Director’s Decision

5.  After considering the information provided by the applicant in the NCF and at the screening interview on 31 October 2017, the Director found the NRF Claim unsubstantiated for torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeal to Board and Board’s Decision

6.  The applicant appealed to the Board, which conducted a rehearing on 26 September 2018, at which the applicant gave evidence and answered the Board’s questions through an interpreter.

7.  The Board dismissed the appeal on all 4 grounds for non-refoulement protection.  It found the applicant’s account vague and minimal in detail.  It was not based on personal experience but had been constructed and was therefore unreliable.  The applicant had nothing to note of the person with whom he entered into a business partnership.  He told the Board he had not thought of checking the background of the person to whom he handed over such large amounts of money.  Nor could the applicant say much about the 2 friends who were allegedly willing to lend him money.  His account of what happened after Lama refused to return his investments was also remarkably vague, superficial and stilted.  He provided no detail regarding the alleged attack against him either.

Application for leave for judicial review and Judge’s Decision

8.  By the Form 86 issued under HCAL 2792/2018 on 6 December 2018, the applicant applied for judicial review of the Board’s Decision without stating any ground for judicial review.

9.  By the 12-page supporting affirmation, the applicant complained about: (1) the unfair determination of the NRF Claim by the Director and the Board; (2) his lack of language and legal assistance in lodging and arguing the appeal before the Board or in applying to the Court of First Instance for leave to apply for judicial review of the Board’s Decision; (3) the Director’s dismissal of the NRF Claim for the sake of rejecting all non-refoulement claims, e.g. by wrongly deciding that his fear was not well-founded and by assessing the risk of harm as low due to the availability of state protection despite the applicant’s account of the physical assault he had experienced; (4) the Board’s assessment of the NRF Claim more or less based on a template; and (5) the Board’s Decision being “unfair, unreasonable, illogical” for giving no credence whatsoever to the applicant’s evidence.

10.  The Judge refused leave after an oral hearing for the reasons set out in [13] to [22] of the Form CALL-1:

“Grounds for judicial review

13.  The Applicant lodged a twelve-page affirmation in support of his application.  His grounds for application revolve around the lack of legal and language assistance; the Board disbelieving his evidence; and procedural unfairness, irrationality and unreasonableness in the Decision.  These grounds are intertwined.  Although the Court dealt with them under separate heads, the Court bore in mind the effect these grounds had on one another and cumulatively.

14.  As for his complaint about lack of legal and language assistance, the Applicant said that the majority of the documents in the appeal bundle were in English and without translation.  He was not given legal assistance in preparing his appeal and legal representation at the oral hearing.  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 Sakthevel Prabakar v. Secretary for Security 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.

15.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form, attending the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview as he was the author of those documents.  The Notice of the Director was issued to him on 30 November 2017.  It was not until 26 September 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.  By the time of the hearing before the Board, he had been in Hong Kong for two years.  He had in between the issue of the Notice and the oral hearing about ten months to seek assistance from among his own circle.  He must have his means of seeking language assistance.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board.  It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

16.  He complained the fact that the Decision dated 29 November 2018 was not accompanied by a translation in Nepalese and as a result he had difficulties understanding why his appeal was dismissed and was deprived of the opportunity to make a full application for leave to apply for judicial review.  A translation of the Decision of the appeal which was already dismissed could not change the Decision or the outcome of the appeal.  However, the Applicant said he was “currently seeking legal presentation (sic) and reserve the right to submit additional and/or amended grounds and documents in support of [his] claim.”  When specifically asked if he had any other documents or submissions to make, the Applicant confirmed he had none.  Two and half years have lapsed.  If he had any documents which are relevant and which he had overlooked and neglected to produce to the Board, he should have them available now.  Obviously, he had none.  No prejudice was caused due to the lack of translation of the Decision.

17.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

18.  As for his complaint about the Board rejecting his evidence, this is a finding of facts which is within the exclusive realm of the Board as the tribunal of fact.  The Board devoted two and half pages in the Decision in analysing the evidence.  It took great pains to make enquiries from the Applicant for details to support his claims but he could provide no details. In the light of the circumstances of the case he presented, those details are reasonably expected of him, if his account is true.

19.  The Applicant quoted the case of Shafqat Ali v Betty Kwan and Others and authorities cited therein.  He submitted that the decision maker must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur.  Hence, he argued that it was irrational, unreasonable and unfair for the Board to exclude his evidence about the partnership, the loan and Lama’s refusal to repay.  The principle is “not to exclude any matters from consideration unless the decision maker feels safe to do so”.  The principle is not “to accept any assertions by the claimant on its face value”.  Whether it was safe to exclude any matter is a question for the Board upon consideration of the evidence in its totality.  The Applicant complained that the Board failed to take into account relevant facts like the traditions of Nepal, culture and mutual relationship in Nepal where most of its nationals used to trust on mutual relations.  The purpose of the questions raised by the Board was precisely to assist the Applicant to present the reasons for his trust in Lama and for his friends’ trust in him, but he failed to provide such information.  Thus the Board has done what he complained of and gave its reasons in its two-and-half-page analysis.

20.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. Having rigorous 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; 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 claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

21.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.”

(footnotes omitted)

Appeal to Court of Appeal - grounds of appeal & failure to file submission

11.  By the notice of appeal filed herein on 14 May 2021, the applicant appealed against the Judge’s Decision on the following 2 grounds:

(1)  “Ground 1” - It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant.

(2)  “Ground 2” - Notwithstanding his inability to read or write English, after the Director’s Decision, he had not been provided with any language or legal assistance, without which he could not (1) fully understand the decisions that had been made against him; (2) formulate proper grounds for judicial review or grounds of appeal; or (3) effectively appear at hearings.  The Judge was unfair in failing to acknowledge or give weight to his language incapability or consider the significance and extent of unfairness to him arising from his lack of legal or language assistance.

12.  In breach of paragraph 4(1)  of the directions given by the Registrar of Civil Appeals on 21 July 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 6 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

13.  The hearing on 16 November 2021 was vacated, leaving us to deal with the appeal on paper on the material already filed with the court.

Ground 1

14.  Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how he or his case has not been treated with caution or diligence.

Ground 2

15.  It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

16.  As noted by the Judge, the applicant did have the benefit of legal representation from the DLS in presenting his case to the Director.  Other than a general complaint, he has not pointed out in what ways he was prejudiced before the Board or the Judge due to his being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

17.  As for interpretation services, they were provided at the hearings before the Board and the Judge.  The applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of his case.

18.  In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.  We cannot find any error of law, procedural unfairness or irrationality on the Board’s part.  Nor can we discern any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.

Disposition

19.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.