RAI TIKA KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 387/2024, [2025] HKCA 78

On Appeal From [2024] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 387 OF 2024

(ON APPEAL FROM HCAL NO 1723 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 13 September 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of the Immigration (“the Director”) dated 24 July 2018.

BACKGROUND

2.  The Applicant is a national of Nepal. She entered Hong Kong as a visitor on 30 November 2014, and had overstayed since 2 December 2014. On 17 March 2017, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by members of the Tarai-Madhesh Party (“TMP”) because she was a member of another political party, Federal Limbuwan Forum Nepal (“FLFP”), and she refused to leave FLFP to join TMP. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of his decision dated 13 September 2024.

3.  By a Notice of Decision dated 24 July 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. Assisted by an interpreter qualified in the Nepali and English languages, she attended an oral hearing before the Board on 18 February 2019. On 6 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§13 and 14 of his decision, as follows:

“[13] The Board considered that the number and nature of inconsistencies and contradictions in the applicant’s evidence had undermined her reliability [37]. Furthermore, there was also no reliable evidence showing that (i) the [Applicant] would be ill-treated or be killed upon return to Nepal; (ii) TMP would look for the [Applicant] throughout the whole Nepal and (iii) the Nepalese government would be unwilling to help [40].

[14] The Board found the [Applicant] had at most suffered a minor injury, for which she managed to fully recover within a relatively short period of time. There was also no evidence that she was targeted by the Nepalese government. Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [42]-[52], [62]-[79], [85]-[88]. Furthermore, the country of origin information also indicated the availability of state protection [53]-[59], [61] and internal relocation [80]-[84].”

THE JUDGE’S DECISION

5.  On 24 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In her supporting affirmation, the Applicant merely stated that the Board’s Decision was not fair or transparent, but without giving any particulars.

6.  The Judge scheduled an oral hearing of the leave application on 5 August 2024, but the Applicant failed to attend the hearing without prior notice. On 13 September 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[19] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

…

[21] For the reasons given above, the Board did not accept the [Applicant’s] evidence. The [Applicant] has not raised any valid reason to challenge the Board’s Decision.

[22] The [Applicant] fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal dated 24 September 2024, the Applicant complained about the following matters:

(1)  She did not receive any correspondence pertaining to the scheduled hearing before the Judge, and thus she did not attend the hearing.

(2)  There was unfairness arising from her language incapacity and lack of legal assistance. As a self-represented litigant, it was difficult for her to understand the Judgment and to present her case before the Judge.

(3)  There was procedural unfairness arising from the lack of other avenue for a non-refoulement claimant wishing to appeal against a decision based purely on credibility. The Judge should have held a hearing in which she could explain to the Judge the errors in the decision of the Board with the help of an interpreter.

8.  In her 5-page skeleton submissions belatedly lodged on 27 December 2024, the Applicant repeated her complaint regarding the lack of language and legal assistance, and further complained that although the Director had not made any adverse finding on her credibility, the Board made such a finding.

9.  At the hearing of the present appeal, the Applicant informed the Court that she was married in December 2023 and had a son, her husband was a Nepali, and she was applying for a dependant visa.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.  In respect of the Applicant’s complaint that she was not properly informed of the scheduled hearing before the Judge, it has no merit. The court record shows that the notice of hearing was sent to the Applicant’s last reported address on 23 July 2024 without being returned through undelivered post. It has repeatedly been held by the Court that it is the duty of a litigant to give to the court an address to which correspondence or notice can come to his/her attention in a timely manner, and that the consequences of any delay or failure of communication arising from his/her failure to do so will fall upon the litigant. The Judge was entitled to deal with the leave application on the available materials in the circumstances where the Applicant was absent from the scheduled hearing without any proper explanation.

12.  The other complaints of the Applicants are new points. She is not entitled to raise those complaints for the first time in the Court of Appeal. In any event, they have no merit.

13.  In respect of the Applicant’s complaint of unfairness arising from her language incapacity, the Court has repeatedly held that the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance. The Applicant was assisted by legal representative in relation to the assessment of her non-refoulement claim by the Director, and plainly had language and legal assistance at that stage. She was also assisted by a Nepali interpreter in the hearing before the Board. In this regard, we also note that the Form 86 and the supporting affirmation filed in the court below, as well as her Notice of Appeal and written submissions filed with this Court are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance as needed.

14.  In respect of the Applicant’s complaint of lack of legal assistance, the Court has also repeatedly held that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings. As mentioned above, the Applicant had legal assistance in relation to the assessment of her non-refoulement claim by the Director. Although she had no legal representation before the Board and the Judge, the assessment of her non-refoulement claim by the Board, and the consideration of her intended grounds of judicial review by the Judge were thorough and fair. Further, the Applicant has failed to show that she was inhibited from advancing any particular point or ground before the Board or the Judge by reason of the alleged lack of legal or language assistance.

15.  In respect of the Applicant’s complaint that there lacked other avenue to appeal the Board’s Decision based purely on credibility, the fact that there is no further right of appeal against a decision of the Board (on whatever ground) is not a valid ground of judicial review of the Board’s Decision. On the other hand, the Applicant is entitled, and has exercised her right, to seek leave to apply for judicial review of the decision of the Board.

16.  It is immaterial that the Director did not make any adverse finding on her credibility. The Applicant’s appeal to the Board was a re-hearing. The Board was not bound by the Director’s determination, and was entitled to reach its own view on the Applicant’s credibility.

17.  In any event, the Board’s Decision was not based purely on the Applicant’s credibility. As observed by the Judge’s at §§13 and 14 of his decision, the Board considered that the Applicant had failed to discharge her burden of proving her entitlement to non-refoulement protection, and both state protection and internal relocation would be available to the Applicant if she returned to Nepal. Further, we do not see why a decision of the Board based on a non-refoulement claimant’s credibility is of itself unfair.

18.  Lastly, it is well established that the assessment of evidence, country of origin information, 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 the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

19.  In all, we consider that a high standard of fairness has been achieved in the overall process of the determination of the Applicant’s non-refoulement claim.

20.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the Order.

21.  The Applicant’s appeal against the Order has no merit, and is dismissed.

22.  If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to her in her native language at a mutually convenient time.