KHATRI DINESH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 607/2018

[2019] HKCA 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 607 OF 2018

(ON APPEAL FROM HCAL NO 155 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 12 December 2018, refusing to grant the applicant leave for judicial review.

BACKGROUIND

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2577.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Nepal. He came to Hong Kong on 24 July 2012 as a visitor and was permitted to stay for five days.  He did not depart upon expiry of the limit of stay and was arrested by the police on 30 July 2012. The applicant lodged his non-refoulement claim by way of written representation on 19 and 22 October 2012.  His claim was based on his fear of being harmed, or even killed, by some people who were affiliated with the Unified Marxist Leninist party (“UML”), in particular the two brothers named Balaram Karki and Bhola Karki (“the Brothers”) respectively, as the applicant was involved in the killing of their late father Tek.

4.  By a Notice of Decision dated 10 November 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 5 June 2017, the Director rejected his claim on BOR 2 risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 30 October 2017, the Board dismissed the appeal on 29 December 2017.  The Board found that the applicant’s evidence was illogical and inconsistent which rendered his claim unreliable.  Although the applicant alleged that he was the target of revenge of the Brothers, he managed to escape and only suffered minor injuries from the alleged attacks.  The Board further found that the alleged ill-treatments did not attain the minimum level of severity and the risk of harm was more imaginary than real.  In any event, reasonable state protection and internal relocation were available to the applicant.  For the aforesaid reasons, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds.

THE JUDGE’S DECISION

6.  On 2 February 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In the supporting affirmation filed on the same day, the applicant put forward the following grounds for his intended challenge :

(1)   unlawfully fettering its discretion;

(2)   acting in a procedurally unfair manner;

(3)   rendering unreasonable or irrational decisions;

(4)   failing to meet the greater care and duty owed to a self-represented claimant;

(5)   lack of legal representation throughout his appeal/petition to the Board;

(6)   lack of language assistance and lack of explanation to the applicant that the claim on BOR 2 risk was an applicable ground on appeal; and

(7)   allowing the Director to be excused from the Board hearing without giving any reason.

7.  On 12 December 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [37] – [52] for his refusal to grant leave :

“ Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45).[6] Nevertheless, it is said in Re Islam Rafiqul :

‘ 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 scrutinising 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 the decision of the Board.’ (CACV 219/2018 [2018] HKCA 570, para 14(1))

39.   The Applicant complained he was not provided with legal assistance for appeal to the Board. He had legal assistance from the Duty Lawyer Service (“DLS”) up to the Director's decision dated 10 November 2015.

40.   The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (CACV 284/2017 Re: Paswan Shibu Lal, para 21). The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

41.   The Applicant complained about lack of language assistance. He met a Chinese lady four years ago, who is now his wife. However, he said he just showed her some but not all of the documents and his wife’s English was not too good.

42.   The Applicant's wife is a nurse working in a public hospital in Hong Kong. She must have certain proficiency in English. She surely could provide some translation/interpretation assistance to the Applicant.

43.   The Applicant had a friend to help him to prepare Form 86 and his affirmation for the current application of judicial review. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance and handling English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

44.   The Applicant's suspicion that the interpreter had not properly translated the basis of his claim in NCF was mere speculation. If there was anything wrong, the Applicant could certainly find it out with the assistance of his wife and his friend. He would have the mistakes (if any) pointed out already. There is none.

45.   The Applicant complained the interpreter in the Board hearing did not explain properly to him “that my BOR2 risk claim has been reached to decision and has been merged in this hearing and I can appeal against the Further Decision dated 5 June 2017 and what the actual mean of it…”. However, according to para. 41 of the Adjudicator’s report the Applicant told the Adjudicator that he did not wish to appeal against the Director's further decision. No doubt, the Applicant was clearly aware BOR2 risk was also an applicable ground on appeal to the Board but he opted not to pursue that particular ground.

46.   The Applicant complained the Adjudicator rejected his evidence and ignored relevant matters. He said the Adjudicator failed to explain enough of her decision, which was unreasonable or irrational.

47.   The Adjudicator analyzed the Applicant's case in detail. She rejected the Applicant’s story. The Adjudicator, after studying relevant COI, was satisfied reasonable state protection was available to the Applicant in any event.  She also found internal relocation was viable. The Adjudicator's findings were not Wednesbury unreasonable.

48.   The Applicant accused the Adjudicator of ignoring his medical condition. The Applicant failed to adduce evidence to raise that as a relevant concern for the Adjudicator.

49.   The Applicant criticized the Director for not attending the appeal hearing before the Adjudicator on 30 October 2017.  I cannot see how the Director’s absence in the Board hearing could prejudice his appeal.

50.   In court, the Applicant said he did not have sufficient time to prepare for the appeal hearing. Again, he failed to give particulars. There was no evidence the Applicant had raised the same complaint before the Adjudicator and asked for adjournment. He gave evidence before the Adjudicator.  Apparently, the Applicant had prepared for the appeal hearing.

51.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had each engaged in joint endeavor with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed she was acquainted with the facts and applied the law correctly. She considered the Applicant's claim carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

52.   The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

8.  The applicant filed the Notice of Appeal on 24 December 2018 in which he advanced the following grounds of appeal :

“ 1. The Deputy Judge has erred in determining that I did not wish to appeal against the Director’s further decision. The Deputy Judge merely relied on the Adjudicator’s report but did not listen to the whole recording. This has been taken out of context. This is an assumption and clearly an oversight. Furthermore, this is far from high standard of fairness.

2. Furthermore, my wife could not have possibly understood the content of the letter and explain it to me because non-refoulement claims are very niche and is not something that can be understood easily in a normal context.  This is again a presumptuous ground.”

9.  In his written submissions, he merely reiterated his grounds of appeal as set out in the Notice of Appeal.

10.  We heard the appeal on 30 April 2019.  The applicant did not add anything by way of oral submission.

DISCUSSION

11.  On ground 1, as rightly pointed out by the Judge at paragraph 45 of the CALL-1 Form, it was stated in the paragraph 41 of the Board’s decision that the applicant did not wish to appeal against the Director’s further decision.  Nonetheless, the Board went on to consider the BOR 2 decision based on the evidence provided by the applicant and it did not find any real risk or danger against the applicant’s life that warranted any non-refoulement protection under BOR 2 risk and other applicable grounds.  We agree with the Judge’s conclusion that the Board had proper basis for its findings, conclusion and decision which were not Wednesbury unreasonable and had adhered to the high standards of fairness required of the applicant’s non-refoulement claim. Ground 1 is not reasonably arguable.

12.  On ground 2, it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].  In the context of the present appeal, we are not satisfied that language assistance could have improved his case on BOR 2 since, with such assistance (which he obviously had as all the documents signed and lodged by him with the court were written in English), he did not produce anything to further support his BOR 2 claim at the hearings before the Board and the Judge.  Ground 2 is devoid of merit and doomed to fail.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.