RE SUNAR MINA

CACV 534/2018

[2019] HKCA 317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2018

(ON APPEAL FROM HCAL NO 1073 OF 2017)

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J U D G M E N T

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Hon Mimmie Chan J (giving the judgment of the Court):

FACTUAL BACKGROUND

1.  This is the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 19 October 2018.  By his decision, the judge refused the application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning the Applicant’s non-refoulement protection claim.

2.  The Applicant is a national of Nepal who arrived in Hong Kong on 26 February 2004 with permission to work as a foreign domestic helper.  When her contract was prematurely terminated on 28 May 2005, she remained in Hong Kong and overstayed.  On 9 February 2009, she surrendered to the Immigration Department.  She lodged a torture claim and later a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her former husband and/or by certain members of the rebel group Maoists.  She has been released on recognizance pending the determination of the claim.

The Director’s decision

3.  By a Notice of Decision dated 28 October 2016, the Director rejected the Applicant’s non-refoulement claim.  The decision covered BOR 2 risk, BOR 3 risk and persecution risk.

4.  The Director considered there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by her former husband and the Maoists upon her return to Nepal.  The Applicant had been able to evade her former husband’s violence during the time when she stayed away from him.  As for the problem with the Maoists, no Maoist had approached the Applicant during the time when she was in Kathmandu.  The Director considered on the evidence that their influence was only localized.  Thus, the risk of harm from the Applicant’s former husband and the Maoists was assessed to be low especially if she should relocate to other parts of Nepal.  The Director did not accept that the Applicant would face a real and personal risk of being subjected to ill-treatment, allegedly inflicted by her former husband or the Maoists and prohibited by BOR 3.  The Director considered that the matter between the Applicant and her former husband was a domestic issue, and that the Applicant’s problem with the Maoists was private in nature.  There was nothing to demonstrate that the Applicant had any problem because of her race, religion, nationality, membership of a particular social group or political opinion.  In the Director’s view, the availability of state protection and the existence of internal relocation alternatives make the perceived risk of harm, if any, avoidable.

The Board’s decision

5.  The Applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 9 August 2017.  The Applicant abandoned her claim of fear of harm from the Maoists, as she accepted that the general security situation in Nepal has greatly improved since the Maoists entered into a ceasefire in 2006.  The Board assessed that her fear of harm from her former husband was negligible and not amounting to a real risk, as her experience of domestic violence from him had ceased after 2003.  She did not experience any harm from her former husband when she lived with her parents, she is now divorced from her husband, and she has not heard from him since.  The Board therefore rejected the appeal on 31 August 2017.

The intended judicial review

6.  The Applicant filed a Form 86 and an affirmation on 14 December 2017, seeking leave to apply for judicial review against the decisions of the Director and the Board on the following grounds: (1) lack of legal representation, (2) lack of language assistance, (3) wrongful exercise of case management power and (4) lack of fair hearing.

7.  Although the Form 86 was filed out of time, time extension was granted by the judge.

The judge’s decision

8.  The judge considered that the Applicant already had the benefit of legal representation in presenting her case to the Director and she was able to testify and make representation in her appeal hearing without difficulty.  The judge considered that there was nothing amiss arising merely from the fact of the Applicant’s lack of legal representation in the appeal process.  The judge also found that the Applicant’s complaint on lack of language assistance was without merit, as her claim form was completed on her instructions to the representative from the Duty Lawyer Service, and the Applicant was assisted by an interpreter at the appeal hearing before the Board.

9.  With regard to the Applicant’s complaint over the Board’s reliance of COI in its assessment of the effectiveness of police and law enforcement in Nepal, the judge considered that the Applicant had failed to provide any particulars to support her complaint, or to show that the Board was wrong in its assessment.  

10.  Further, the judge found that there was no merit in the Applicant’s complaint of the non-attendance of the Director at her appeal hearing before the Board, as no prejudice or adverse effect on the Applicant can be shown.  Finally, the judge did not find any error of law or procedural unfairness in the decisions of the Director and the Board, or any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

11.  Not being satisfied that the Applicant has any prospect of success in the intended judicial review, the judge refused the leave application by his decision of 19 October 2018.

12.  On 29 October 2018, the Applicant filed a Notice of Appeal against the decision of the judge.

GROUNDS OF APPEAL

13.  The Applicant stated her grounds of appeal in her affirmation as follows:

(1)  The judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)  The judge failed to provide detailed reason in support of [his] decision.

14.  The Applicant lodged her skeleton submissions on 31 January 2019.  She stressed that high standards of fairness are required in the determination of a torture claim and criticized the Board for approaching the matter by simply trying to see whether he could find fault with the decision of the Immigration Officer but failed to scrutinize the decision of the Director.  She argued that the Board ought to have considered the conditions of the Applicant’s country of origin.

ANALYSIS

Legal Principles

15.  It is not the role of the court to provide a further avenue of appeal by judicial review.  The primary decision makers are the Director and the Board. In non-refoulement cases, the court will adopt an enhanced standard in scrutinizing the decision of the Board because of the seriousness of the issue at hand, but the court should not usurp the role of the Board.  Assessment of the evidence, the materials on the Country of Origin Information (“COI”), the risk of harm, the adequacy of state protection and the 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.

16.  An appeal against the refusal of leave for judicial review is not the occasion for regurgitating arguments advanced to and rejected by the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge, and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong in making the decision.

17.  On appeal, the Court will only examine the decision of the judge in light of the grounds advanced by the Applicant.  If no viable ground is put forward, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh, as if it was a fresh application for judicial review.

Merits

18.  The first ground of appeal, which concerned a finding of state acquiesce or involvement, was never raised when the Applicant applied for leave for judicial review.

19.  The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive, which were not canvassed before the Court of First Instance and for which leave has not been sought within time.  In any event, this ground of appeal is not only lacking in particulars and substance, but is misconceived, as the judge did not make any finding on the absence of state acquiescence or involvement.   It is also inconsistent with the Applicant’s case presented to and conceded before the Board, that she only had fear of harm from her former husband.    

20.  The Applicant alleged that the judge failed to provide detailed reasons for his decision.  This allegation is without merit.  The judge set out clear and adequate reasons for his decision in paragraphs 14 to 19 of the CALL-1 Form.

21.  In her skeleton submissions, the Applicant did not put forward any viable ground to reverse the judge’s decision.  Her criticisms against the Board are lacking in particulars and without basis.  She failed to refute the core finding of the Board that her fear of harm from her former husband and/or the Maoists arose from a domestic and private dispute, was negligible and did not amount to a real risk.  The judge’s conclusion on the lack of merit in the Applicant’s case is correct.

DISPOSITION

22.  For the above reasons, the appeal should be dismissed as there is no merit in the appeal and no prospect of success in the intended application for judicial review.