RE GURUNG SAGAR

CACV 597/2018

[2019] HKCA 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 597 OF 2018

(ON APPEAL FROM HCAL NO. 113 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (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.

2.  Pursuant to the Order made by Master Au-Yeung on 15 January 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 1 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged in accordance with the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2576.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Nepal.  He entered Hong Kong illegally on 21 April 2016 and surrendered to the Immigration Department on 25 April 2016.  On 16 August 2016, the applicant lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by his boss as he was suspected to be involved in an incident of theft of gold in the shop owned by his boss.

5.  By a Notice of Decision dated 21 June 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 4 December 2017, the Board dismissed the appeal on 12 January 2018. The Board found that the applicant was not a credible witness and that his claims were implausible and fabricated to support his claim.  The Board was not persuaded that the applicant’s boss had accused him for stealing gold in the shop or he was assaulted by gangsters in his home village after the alleged theft incident.  On the totality of evidence, the Board did not consider the applicant would face a real risk of harm from his boss or the Nepalese authorities if refouled, see [25] to [42] of the Board’s decision.  The Board concluded that the applicant had failed to establish his case on non-refoulement protection claim on all applicable grounds. 

7.  On 24 January 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 to support his intended challenges:

(1)  Lack of legal representation for the appeal hearing before the Board;

(2)  Lack of language assistance;

(3)  Lack of fair hearing and the Director was excused from the appeal hearing before the Board without giving any reasonable explanation;

(4)  Wrongful exercise of case management power by failing to take into account or putting proper weighton relevant Country of Origin Information (“COI”), cherry picked COI and put weight on irrelevant COI in the consideration of his claim.

The Judge’s decision

8.  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 [28] – [40] for his refusal to grant leave:

“ Discussion

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

29. 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) 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))

Lack of legal representation

30. The Applicant complained he had not been provided with legal representation for appeal to the Board. He was represented by the Duty Lawyer Service (“DLS”) up to the Director’s decision dated 21 June 2017.

31. 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, par 21). The Applicant could not show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

32. The Applicant complained he had not been given sufficient interpretation/translation assistance.

33. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while 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.

34. The Applicant’s suspicion that the interpreter had not properly translated/interpreted the basis of his claim in the non-refoulement claim form (“NCF”) was not well-founded. If there was anything wrong, I am sure the Applicant with his friend’s assistance could have pointed out what the mistakes were.

Lack of fair hearing

35. The Applicant complained the Director was excused from the Board hearing on 4 December 2017. However, he failed to point out how his appeal could be prejudiced by the Director's absence.

Wrongful exercise of case management power

36. The Applicant complained the Director for relying on certain country-of-origin information (“COI”) unduly. The was related to the Director’s decision only. As said in para. 18 above, the Applicant cannot seek leave for judicial review against the Director's decision and I shall deal with his application in relation to the Board's decision only. The Adjudicator found the Applicant's story incredible and rejected his claim. He had not relied on any COI to come to his conclusion.

37. The Applicant criticised the Adjudicator for failing to consider his surrender to the Immigration Department as a significant indication of his fear.

38. The Applicant alleged he entered Hong Kong illegally from China on 21 April 2016. He surrendered to the Immigration Department four days later on 25 April 2016. The Applicant's surrender was a neutral fact. It was neither for nor against him. The Adjudicator was right not to pay heed to such neural fact.

39. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in proper joint endeavour 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 he was acquainted with the facts. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

40. 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

9.  The applicant filed the Notice of Appeal on 20 December 2018 in which he set out following grounds of appeal:

“1. I disagree that I cannot seek judicial review against the Director’s decision.

2. There are no reasonableness, lawfulness or fairness of the decisions and the process of reaching such decisions by the authorities. There is thus no high standard if fairness involved.

3. The lack of language assistance has been proven in the previous Court, yet the Deputy Judge refused to acknowledge the significance in the previous courts. The Deputy Judge made assumptions that I “could find someone to assist him with interpretation / translation and dealing with English documents at all material times.” This is not true because if I were to have assistance at all material times, I would not have been complaining about it.

4. The Deputy Judge has erred in ruling that the Board is correct in its decision by rejecting my claim based on credibility.  The Board (and now the Deputy Judge) has failed to take into account the significance of the incidents that has happened personally to me which could be hard to assess given the incidents happened in a different county and not in Hong Kong.  Just because it might not happen in Hong Kong does not mean that it would not have happened in Nepal.  Such presumptuous conclusion is in violation of high standard of fairness.”

Discussion

10.  Grounds 1 is devoid of merit. In Re Moshsin Ali [2018] HKCA 549, the Court held that the decision of the Director is not susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant.  As the applicant had already petitioned to the Board against the Director’s decision, the court would focus only on the decision of the Board in the application of judicial review. 

11.  Ground 2 is a blanket allegation which fails to identify any errors in the Judge’s decision.  It cannot be accepted as a valid ground of appeal.

12.  On ground 3, we do not see any merit in respect of the challenge based on the lack of language assistance.  It is trite that the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires.  It is further noted that all court documents in relation to the judicial review application and this appeal were written in English, indicating either that the applicant is familiar with the English language or he has access to such language assistance if needed.  Ground 3 is not reasonably arguable.

13.  Ground 4 sets out the applicant’s mere disagreement with the assessment by the Board of the risk faced by him.  It is well-established that this assessment is one for the Director and the Board to make, and one with which the court hearing an application for judicial review will not interfere in the absence of any procedural impropriety or error of law, neither of which has been shown here.  We are satisfied that the Judge had reviewed the Board’s decision under “rigorous examination and anxious scrutiny” and the Board had proper basis for its findings, conclusion and decision which were not Wednesbury unreasonable, see [39] of the CALL-1 Form.  Ground 4 is unmeritorious and doomed to fail.

14.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonable arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

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