RE SHRESTHA KHAGENDRA KUMAR

CACV 350/2023, [2024] HKCA 886

On Appeal From [2023] HKCFI 2778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2023

(ON APPEAL FROM HCAL NO 1545 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 the applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 27 October 2023 ([2023] HKCFI 2778) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2019[1] (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 June 2018 (“the Director’s Decision”) refusing his non-refoulement claim.

2.  The appeal was listed to be heard on 25 September 2024.  The applicant was directed to lodge two sets of skeleton argument on or before 28 August 2024 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 5 August 2024. However, the applicant did not lodge any skeleton argument in support of his appeal.

3.  As the applicant failed to lodge a skeleton argument by the stipulated time, the applicant was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 29 August 2024.

4.  Subsequently, this court was notified by the Immigration Department on 13 September 2024 that the applicant had been removed voluntarily back to his home country.

BACKGROUND

5.  The applicant is a national of Nepal.  He claimed to have sneaked into Hong Kong from Mainland China on 15 February 2015. He surrendered to the Immigration Department on 17 July 2015.  He then lodged a non-refoulement claim on 28 August 2015 on the basis that, if refouled, he would be harmed or killed by a moneylender (“the Moneylender”) for being unable to repay his debt.  Details of the applicant’s claim were summarised by the Judge at [3] ‑ [7] of the Leave Decision.

6.  By the Director’s Decision, the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

7.  The applicant appealed the Director’s Decision to the Board.  On 12 March 2019, the applicant attended an oral hearing and gave evidence before the Board with the assistance of a Nepalese interpreter.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [8] ‑ [12] of the Leave Decision:

“8. Despite some reservation and his failure to produce documentary evidence as it indicated it had, the Board assessed his claim on the basis of the factual case as he asserted, except his bare assertion about internal relocation and police protection.

9. The Board found it not surprising that the Moneylender continued his demands for repayment throughout the relevant period and threatened the Applicant with harm and possibly death. But, having regard to all the evidence, in particular, the delay of almost three years since the first default until his unhindered departure from Nepal and to the absence of any assault on harm to the Applicant, it found the Moneylender had no intention to harm him over that period or cause him any harm now or in the reasonably foreseeable future if he returns to his home area in Nepal.

10. The Board also found that the Applicant has property interest in some land which he could actualise to repay his debt and the Moneylender had no choice but to wait for repayment. It found however unpleasant as the insults and harassment might be, they did not amount to a real risk of serious harm, torture, cruel, inhuman, degrading treatment or punishment, or death that would necessitate non-refoulement protection.

11. In view of the above finding, the Board did not consider it necessary to consider state protection or internal relocation. However, it found, on the basis of authoritative and credible country of origin information, it would not cause the Applicant undue hardship to relocate to some other areas in Nepal to avoid the harm should it turn out to be real.

12. Applying the law applicable to non-refoulement protection to the above facts, the Board found the Applicant was not at risk of any of the proscribed harm and not entitled to protection under any of the four applicable grounds.  Hence, it dismissed his appeal.”

THE JUDGE’S DECISION

8.  On 5 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  He gave no ground of review in his Form 86 or supporting affirmation.

9.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 27 October 2023, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [15] ‑ [16] of the Leave Decision:

“15. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of the case as he asserted.  The Applicant could not have any complaint on these findings of fact by the Board.  It was on the basis of these findings of facts that the Board further found that the feared risk of harm unlikely to materialize and, in the alternative, that internal relocation is feasible.  Hence, the Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds.  These findings of facts are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

16. Accordingly, leave is granted to amend the Form 86 as indicated in Paragraph 1 above; and the application for leave to apply for judicial review as amended is refused.”

THIS APPEAL

10.  In his Notice of Appeal filed on 6 November 2023, the applicant mainly complained that the Director, the Board and the Judge failed to properly appreciate or give weight to state acquiescence which led to an unfair outcome in his case and that the Board also failed to make sufficient enquiry before finalizing his decision.  He further complained that the Country of Origin information (“COI”) referred to by the Director in his decision was preconceived and unfair.  He also asserted that he should be given an opportunity to plead his case properly.

11.  Contrary to the directions of this court dated 5 August 2024, the applicant failed to lodge any written submissions.

DISCUSSION

12.  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 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.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

13.  In our view, the applicant’s allegations have no substance.  At the outset, all his allegations are new and not raised before the Judge.  He did not give any reason as to why these grounds were only raised on appeal and not before the Judge.  It is well established that this court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, the applicant’s complaints are also general and bare assertions without any specific particulars or evidence in support.  More importantly, those complaints are directed mainly at the decisions of the Director and the Board and the applicant fails to point out with particulars how the Judge had erred in the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  They do not constitute proper grounds of appeal.  His intended appeal must fail on this basis alone.

14.  Further and in any event, it is trite that assessment of evidence, COI 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].  In our opinion, there is plainly none.  In particular, the Board had expressly considered all the relevant COI and the applicant’s evidence before finding that there was no real risk that the applicant would be harmed by the Moneylender as claimed; and on that basis, it would not be necessary to make further findings on the question of police or state protection: see [67] and [87] of the Board’s Decision.  We have considered the Leave Decision carefully and are unable to see any arguable grounds of appeal against the decision.  We see no basis to disturb the Leave Decision.

15.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.