TIWARI RITA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 79/2024

[2025] HKCA 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2024

(ON APPEAL FROM HCAL NO 377 OF 2019)

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J U D G M E N T

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Hon S T Poon J (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 21 February 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 31 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 April 2018.

BACKGROUND

2.  The Applicant is a national of Nepal. She last arrived in Hong Kong as a visitor on 1 May 2012 with permission to remain up to 15 May 2012. She did not depart upon the expiry of her limit to stay, and overstayed illegally. On 17 September 2013, she surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her former partner Chandra Bahadur Magar (“CMB”) who was abusive and demanded money from her. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 19 April 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 3 risk[2], BOR 2 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 31 January 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§10-12 of the CALL-1 Form, as follows:

“[10] The Applicant testified before the Board. Her evidence was remarkable for her ‘almost complete inability to say anything at all about any of the circumstances she had claimed…led to her fleeing Nepal in fear for her safety’. She was unable to provide details about CBM, such as his parents and how they fell in love. She even gave the wrong spelling for CBM’s name. She was unable to present a coherent account about herself, such as where she was born and the events causing her to flee Nepal.

[11] The Board was satisfied that the state of her evidence could only be explained by the fact that she her claim was concocted. It therefore rejected her evidence in its entirety. It also found her past behaviours inconsistent with those of a person facing serious risks of harm. She did not raise any claim for protection when she first came to Hong Kong and she willingly returned to Nepal after staying for just a week. She also did not make any claim for protection during the first eighteen months after arriving in Hong Kong for the second time.

[10] Having rejected her evidence in its entirety, which is the only factual basis on which her claim for protection is founded, the Board found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Nepal. Hence, it dismissed her appeal against the Director’s Notice.”

THE JUDGE’S DECISION

5.  On 11 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In a document titled “Grounds On Which Relief Is Sought” attached to the Form 86, she advanced the following nine grounds of intended challenge (as set out by the Judge at §14 of the CALL-1 Form):

“(1) Misdirection in the law - The Adjudicator misdirected himself on the law by taking into account that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.

(2) Procedural impropriety / Unfairness – The Adjudicator’s failure to carry out sufficient research and inquiry into the country of origin information (“COI”) …

(3) Irrationality – The Adjudicator failed to take into account and consequently failed to put any weight on the relevant COI …

(4) Irrationality - The Adjudicator failed to evaluate and make a finding of fact as to whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to [BOR 3] …

(5) Irrationality – The Adjudicator failed to analysis and assess weather (sic) state protection exists in Nepal …

(6) Irrationality – The Adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant. …

(7) Procedural Impropriety – The Failure to call for Psychological and Psychiatric evaluations and Reports at any stage of screening and by the Adjudicator at the Appeal stage.

(8) Procedural Impropriety / Unfairness – The Adjudicator applied the incorrect standard of proof in Decision.

(9) Procedural Impropriety / Unfairness – The failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.”

6.  In her supporting affirmation of the same date, she also complained about the lack of legal and language assistance in her appeal before the Board including no translation of the documents in the hearing bundle. She further complained that the Board relied on unofficial or unreliable information and made groundless speculations in determining her claim.

7.  On 21 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] …These are general grounds wholly lacking in particulars relevant to the Board’s Decision, such as what was the mis-direction in law complained of, what was the incorrect standard of proof applied, what were the failures by the assigned duty lawyer.

…

[18] The Board found the Applicant an incredible witness and rejected her evidence in its entirety. The Board gave reasons for its finding. Basically, the Applicant’s evidence is so vague and lacking in particulars that it could not have been a true account of her true experience. The Board found it was a concoction. It was therefore not satisfied that the Applicant had proved the factual basis to support her claimed fears and risks are genuine. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the [Unified Screening Mechanism]. That is a finding of facts which 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.

[19] Given the nature of a non-refoulement claim and the circumstances in which such claims arise, unless the evidence is so internally inconsistent and inherently improbable, a decision maker will assess a claim on the basis of the case as asserted by the claimant. The rejection of a claimant’s evidence in its entirety is extremely unusual, but by no means impermissible. The Board gave full reasons for its assessment of the Applicant’s credibility. Even putting aside the Board’s prerogative in finding of fact, on the evidence it is impossible to challenge the Board’s finding. The Applicant had never been threatened with death by CBM since the last act of domestic violence eight years ago as at the time of the oral hearing before the Board. She had never seen him since. Her fear was based on hearsay. She returned to Nepal voluntarily within a week after having arrived in Hong Kong. She did not make a claim for the first eighteen months after she arrived in Hong Kong for a second time. She only did so on the suggestion of her new Nepalese boyfriend she met in Hong Kong.

[20] 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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism]; and observed a very high standard of fairness. The Court could detect no errors of law or procedural unfairness in the Decision. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s grounds for judicial review are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.”

THIS APPEAL

8.  In her Notice of Appeal filed on 5 March 2024, the Applicant stated that she was in the process of getting married with her boyfriend in Hong Kong and also that she need to be with her boyfriend because he is suffering from multiple health issues.

9.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 21 May 2024. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

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 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 of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.  Further, the assessment of evidence, COI, 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.

12.  The Applicant has failed to identify or show any error of the Judge in his decision of 21 February 2024, and has failed to raise any viable ground of appeal against the Order. Insofar as those assertions relating to her current status with her boyfriend are concerned, we do not see any relevance to the present appeal. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

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