RE GUNA KUMARI MAGAR

CACV 260/2018

[2018] HKCA 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 260OF 2018

(ON APPEAL FROM HCAL 998/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal from the decision of Deputy High Court Judge Bruno Chan dated 8 June 2018 ([2018] HKCFI 1236) refusing to grant leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Nepal.  She arrived in Hong Kong on 24 June 2004 with permission to remain as a foreign domestic helper. Her employment was terminated on 6 February 2006 and she was required to depart on or before 20 February 2006.  She overstayed illegally and had not surrendered to the police until almost three years and nine months later, on 16 November 2009.  She lodged her torture claim on 19 November 2009, which was refused by the Director of Immigration on 30 November 2011.  Her petition against the director’s decision was rejected by an Adjudicator (Torture Petition) on 21 December 2011.  The applicant lodged another claim for non-refoulement protection on applicable grounds other than the torture risk[1] on 22 April 2014. 

3.  The applicant’s claim was based on her alleged fear that, if returned to Nepal, she would be harmed or even killed by a group of Maoists because she repeatedly refused to join them in 2003 and 2004.  The factual background was summarized in [2] – [3] of the Decision of the judge set out in the CALL-1 form.

4.  The director assessed the applicant’s BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4]. By two notices of decision dated 21 March 2016 and 24 March 2017 respectively, the director determined the said risks against the applicant and rejected her non-refoulement claim.

5.  The applicant petitioned to an adjudicator of the Non-Refoulement Claims Petition Office against the director’s decisions.  An oral hearing was held on 13 April 2017, during which the applicant elected to answer questions put by the adjudicator.  Having considered the relevant country of origin information (“COI”), the adjudicator found that, in light of the Comprehensive Peace Agreement entered between the Nepalese Government and the Maoist party in 2006, the Maoists had no more initiative to oppress people to join them.  The adjudicator also did not accept that the Maoist group would still be interested in locating the applicant after 13 years, and would be able to search for her given that the applicant was able to stay in Kathmandu safely for three months back in 2004.  It was also found that state protection was available to the applicant and internal relocation was a viable option for her.  Since the applicant had never suffered any severe injury, the adjudicator found no substantial ground for believing that she would face a future risk of serious harm.  Moreover, the adjudicator also found that the petition would fail on the ground of lack of credibility.  Having heard the applicant during the oral hearing, the adjudicator found it inexplicable that she had waited for five and a half years after her last arrival to lodge her torture claim.  The petition was dismissed on 21 November 2017.

The judge’s decision

6.  On 1 December 2017, the applicant applied to the court for leave to apply for judicial review.  The intended application was in respect of the adjudicator’s decision.  While the form 86 contained no grounds for seeking reliefs, the applicant advanced the following grounds in her affirmation in supporting of the application:

(a) she was not given legal representation in her petition to the adjudicator;

(b) she was not given a translated copy of her Non-Refoulement Claim Form;

(c) the adjudicator had given undue weight to the COI relating to the Comprehensive Peace Agreement entered in 2006; and

(d) the adjudicator excused the attendance of the director at the oral hearing, rendering the hearing unfair.

7.  The judge held an oral hearing on 18 April 2018.  After hearing her, the judge refused to grant leave to the applicant to apply for judicial review.  His reasons for refusing leave were set out in [10] – [16] of the CALL-1 form as follows:

“ 10. For her ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

11. The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal before the Board and to answer questions put to her by the adjudicator without difficulty, as well as in her leave application for judicial review before me when it is clear that she was capable of making representation about her claim, and I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board.

12. As for her complaint in ground (2) of not being provided with the translation of her NCF so that she could find out if the basis of her claim had been properly interpreted, it is clear that her NCF was prepared on her instructions with legal representation from DLS, and that she was assisted by an interpreter at her appeal hearing before the Board during which she never raised any issue about the interpretation of the basis of her claim which was straightforward and clearly about the threats from the group of Maoist against her for refusing to join their party. In the absence of any particulars or specifics to demonstrate that this had indeed been wrongly interpreted, I find this ground of the applicant simply speculative and without merits.

13. Regarding her ground (3) about improper reliance of COI in the assessment of effectiveness and law enforcement in Nepal, again the applicant has failed to provide any particulars or specifics in support of such claim, and upon examining those COI referred to by both the Director and the Board in their decisions, I do not find any basis for this complaint of the applicant.

14. As for her complaint in her last ground of no fair hearing when the Director was not required to attend her appeal hearing before the Board, I fail to see any rationale for insisting that the Director be present, as the mechanism for her appeal which is a rehearing of her claim to be before a different person is actually a safeguard for fairness, and I do not see how she would be prejudiced or adversely affected by the non-attendance of the Director or his representative at his appeal hearing before the Board. There is simply no basis in this ground of the applicant.

15. 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.

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

The appeal

8.  The applicant filed a notice of appeal on 22 June 2018 against the judge’s decision.  In the notice of appeal, the applicant sought to rely on the following grounds of appeal:

“ 1. I respectfully disagree that it is procedurally correct for my BOR 2 claim to be assessed by the Director of Immigration without going through the Duty Lawyer Service.

2. At the time when the two cases quoted in Paragraph 10 of the call-1 form were determine, the Unified Screening Mechanism was not even implemented. At the material time, only torture claim is the one and only ground, and hence there was no issue with the Director of Immigration kick starting a second claim without going through the Duty Lawyer Service. I respectfully argue that neither of the cases are applicable in the current non-refoulement claim.

3. As for the ground of not getting proper language assistance, despite the fact that NCF was completed by the interpreter, even if the form was read back to me through the same interpreter, it does not mean that the instructions have been accurate. The only ways to find out is by way of receiving a translation of my claim, or alternatively have the form read back to me through a different independent interpreter, but they were not achieved.

4. In particular, when the Immigration Department asked me to pick up the appeal bundle, none of the contents were ever read back to me. For as far as I am concerned my NCF was also in the bundle, and that was the chance for the form to be translated back to me. Neither was it read back to me during the hearing. Hence, without any individual or independent interpreter providing interpretation or translation, it cannot be possible or feasible for me to provide any ‘particular or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted’.

5. Having regard to the above circumstances, I seek an order that the order set down by Deputy High Court Judge Bruno Chan be set aside and for another oral hearing be arranged with the interpreter to either interpret or translate all the relevant documents to me for my better understanding.”

9.  By a letter dated 9 July 2018, the applicant consented to have this appeal being heard by a two-judge court.

10.  The applicant lodged her Skeleton Submissions on 9 October 2018.  In the Skeleton Submissions, the applicant simply repeated the grounds of appeal as stated in the notice of appeal.

11.  We heard the appeal on 13 November 2018.

General principles

12.  Recently, in a number of cases (eg, Re Litoun Mounsy [2018] HKCA 537 at [11]; Re Tutul [2018] HKCA 552 at [15]; and Re Islam Rafiqul [2018] HKCA 570 at [14]), we reiterated the general propositions for dealing with an appeal in non-refoulement cases.  For the purpose of this appeal, the salient propositions are as follows:  

(a) 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 cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of 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.

(b) 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 of 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.

(c) In an appeal against a refusal of leave to apply for judicial reviewin non-refoulement cases, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion

13.  In the present case, after considering the relevant COI and hearing the applicant, the adjudicator did not find any substantial ground for believing that the applicant would face a real risk of harm if refouled.  The judge, after rigorous examination and anxious scrutiny, did not find any error of law in the adjudicator’s decision or any procedural unfairness in the process.

14.  In substance, the applicant simply repeated arguments which had been duly and correctly rejected by the judge.  We cannot discern any error on the part of the judge in rejecting her arguments.

15.  As regards the applicant’s complaint relating to the lack of translation of the Non-Refoulement Claim Form, there is no evidential basis for the applicant to suggest that the interpreter who assisted her in completing the Non-Refoulement Claim Form did not provide accurate translation to her.  In our view, the judge’s observations in this respect are fully justified. 

16.  None of the grounds set out in the notice of appeal and the applicant’s Skeleton Submissions constitutes viable ground for reversing the judge’s decision.  Having considered the materials available before us, as well as the applicant’s submissions, we agree with the judge that leave to apply for judicial review should be refused.

17.  We dismiss the appeal accordingly.