RE SHRESTHA PRADIP

CACV 187/2021

[2021] HKCA 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 187 OF 2021

(ON APPEAL FROM HCAL NO. 1037 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 14 April 2021[1] refusing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 24 May 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”)  dated 18 February 2015 and 12 May 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to the appeal being dealt with on the papers without an oral hearing.

3.  The applicant is a national of Nepal aged 34.  He entered Hong Kong illegally and was arrested by the police on 23 October 2009. He raised a non-refoulement claim on 26 October 2009 based on fear of being harmed or killed by (i)  the Nepalese Army who suspected him to be connected with the Maoists and had allowed the Maoists to store weapons and hide in the family mill operated by him; and (ii)  the Maoists who thought he had informed on them to the Army.  His claim was set out in detail in the Director’s first decision at [6] and the Board’s decision at [1] to [9], and summarised by the Judge in [1] to [5] of the Form CALL-1. 

4.  In gist, the applicant claims that since the 2000s, Maoists started to recruit people in his village to join them, and whenever he declined, they would threaten him.  Then one day in 2006, some soldiers told his sister that weapons suspected to belong to the Maoists were found in the mill operated by him.  For fear of being implicated by the discovery, the applicant fled to Kathmandu.  Initially he stayed in his relative’s place, but moved to other places in early 2007 after learning that policemen were looking for him.  His family members later told him that the Maoists were also looking for him because they suspected he had informed the Army about their weapons in the mill.  Fearing for his safety, the applicant departed for mainland China from where he sneaked into Hong Kong.  

5.  By his decision dated 18 February 2015, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3] and BOR 3 risk[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board.  In the meantime, the Director issued his further decision dated 12 May 2017 which assessed the applicant’s claim under the BOR 2 risk[5] ground and decided against it.

7.  The Board heard the applicant’s appeal at an oral hearing held on 4 December 2017 during which the applicant, who was accompanied by his lawyer assigned by the Duty Lawyer Scheme, gave evidence and answered questions from the Board.  By its decision dated 24 May 2018, the Board dismissed the appeal.  In summary, the Board doubted the credibility of the applicant’s claim and found no reliable evidence of any risk of harm from the Nepalese Army or the Maoists.  The Board also doubted whether anyone still had an adverse interest in him after all these years.  The Board further pointed out that the political situation in Nepal had undergone significant changes since the applicant’s departure, including that the Maoists are now a political party accepted by the Nepalese government.   The Board concluded that he failed to make out a case for non-refoulement protection under all applicable grounds.

8.  On 7 June 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not give any ground for seeking relief in the Form 86 and his supporting affirmation.

9.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  For reasons set out in [11] to [14] of the Form CALL-1, the Judge refused to give leave for applying judicial review and dismissed the application:

“11. On 7 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.  The applicant filed the notice of appeal on 23 April 2021, which did not set out any ground of appeal.  It only stated that the applicant would like to reject and review the decision made by the Board on his non-refoulement claim and that it disregarded his dangerous situation.  

11.  In his written submission, the applicant stated the following as his grounds of appeal:

(1)  His case originated from a political problem. The volatile situation in his country has not been resolved.  Despite attempt to sign peace document, the settlement of the conflict between the Maoists and the government remains uncertain.

(2)  Although Nepal has enacted laws for protection of sufferers, there is discrepancy between the good legislative intent and the reality.  Police varies in effectiveness.  The country is torn and the police has not really been carrying out their duties.  Redress of grievances due to maladministration is not an effective solution to people like him who live under threats and have to be constantly on the run.

(3)  The country of origin information relied on by the Board has not really considered the cultural context of Nepal.  By contrast, Human Rights Watch had reported that the authorities continue to favour impunity for the ruling party and the security forces over justice for victims.  

(4)  The Director has failed to consider the factors in the local context and does not understand the intricacies of the situation in Nepal.

12.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

15.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal. 

17.  Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to specific to errors in the reasons and decision of the judge.  In the present case, the applicant did not provide any ground in support of his intended judicial review application.  The Judge concluded there is no basis to interfere with the Board’s decision.  None of the arguments he puts forward in this appeal has addressed the Judge’s decision or the reasons he gave for the decision.  In the circumstances, there is no proper basis for this court to interfere with the Judge’s refusal of the application.  

18.  Secondly, the matters stated in the written submission had not been argued before the Judge.  It is not permissible for an appellant to advance new grounds that had not been argued in the court below.   

19.  Thirdly, the new matters now raised by the applicant relate to evaluation of risk of harm and country-of-origin information.  They are matters for the Director and the Board, who are the primary decision makers.  The Court may only review the findings made by the primary decision makers if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  The applicant has not advanced any substantive ground to challenge these findings of the Board. The submissions on the political or social landscape of the applicant’s home country do not constitute proper grounds for judicial review or proper grounds of appeal.   

20.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that the intended judicial review has no reasonable prospect of success and that leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.