RE TAMRAKAR GITA

CACV 192/2018

[2018] HKCA 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2018

(ON APPEAL FROM HCAL 767/2017)

--------------------------------------

--------------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 13 October 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong illegally on 26 September 2006.  She was arrested by the police on 24 March 2007.  After her arrest, she lodged a non-refoulement claim on 30 January 2008. 

3.  The applicant’s claim was based on the threat from the Maoists, a group of anti-government guerrillas in Nepal.  According to the applicant, the Maoists demanded money from her husband.  When her husband disappeared, the Maoists took the applicant by force to a jungle to question her on the whereabouts of her husband.  She was deprived of food and water during the detention.  She was only released after she promised to inform the Maoists after she found out about her husband’s location.  She decided to flee to Hong Kong.

4.  By a Notice of Decision dated 20 July 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], persecution risk^[2], and torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 15 June 2016, the Board dismissed the appeal on 14 February 2017 (“Board’s Decision”).

6.  By a Notice of Further Decision dated 14 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.  The applicant appealed to the Board again but her appeal was dismissed on 13 October 2017.

7.  At [32] of the Board’s Decision dated 14 February 2017, the Board found that there were a number of unanswered questions regarding the applicant’s case.  Because she did not testify at the Board’s hearing, the Board made no finding on her credibility.  At [8] and [11] the Board held that the incidents did not involve any state agent.  At [18] it took the view that after 10 years, the Maoists no longer had any reason to continue to find and harass the applicant.  Also, internal relocation was viable.  At [28] the Board held that state protection was available to the applicant.

8.  Shortly afterwards, on 22 February 2017, the Director invited the applicant to submit further materials, if any, to enable him to consider BOR 2 risk.  The applicantdid not submit any further materials, and on 14 March 2017 the Director found the claim in respect of BOR 2 risk not to be established.  The applicant appealed again to the TCAB which dealt with the appeal on paper, dismissing the appeal on 13 October 2017.  The application was confined to the TCAB’s decision of 13 October 2017 relating to BOR 2 risk. 

The deputy judge’s decision

9.  The applicant filed a form 86 on 16 October 2017.  The form 86 contained no ground for seeking relief. 

10.  In the affirmation in support of the leave application dated 16 October 2017, the applicant advanced the following grounds for judicial review:

(1)  lack of legal representation in the later stages of the screening process;

(2)  lack of language assistance;

(3)  lack of notification and opportunity to submit on BOR2 risk; no hearing was held in relation to the BOR2 risk issue;

(4)  no proper reasons given by the Director in his further decision dated 14 March 2017 on BOR2 risk; and

(5)  the Director was absent from the appeal hearing before the Board.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for judicial review. The judge gave the following reasons at paragraphs 35 to 46 of the CALL-1 form:

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

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

(a) Lack of legal representation in the later stages of the screening process

37. The Applicant was provided with legal representation by the Duty Lawyer Service up to the Director’s decision rendered on 20 July 2015. She cannot show this court how her case would be undermined or prejudiced by the lack of further legal representation in the later stages of the screening process. 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.

(b) Lack of language assistance

38. In court, the Applicant admitted she had a friend to prepare Form 86 and the affirmation for her. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with documents for her claim. I am sure that was the case at all material times. The Applicant has much exaggerated her problem of getting interpretation/translation assistance and handling documents.

(c) Lack of notification and opportunity to submit on BOR2 risk; no hearing was held in relation to the BOR2 risk issue

39. In court, the Applicant admitted she did receive the Director’s letter dated 22 February 2017 inviting her to provide additional facts on the issue of BOR2 risk. She did not respond to that letter because she had no more documents to submit. She confirmed that she had already submitted all information and materials to the Director and the Board for their consideration of her claim.

40. In that circumstance, the Director and the Adjudicator were right in not holding further hearing on the issue of BOR2 risk. They had already interviewed the Applicant. The Applicant had no additional facts or new argument to submit. The Director and the Adjudicator were entitled to further consider the Applicant’s claim with respect to BOR2 risk simply on documents. The Applicant had not been prejudiced to any extent.

(d) No proper reasons given by the Director in his further decision dated 14 March 2017 on BOR2 risk

41. The Director’s further decision on BOR2 risk dated 14 March 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 20 July 2015 where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 14 March 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 20 July 2015.

(e) The Director was absent from the appeal hearing before the Board

42. There is no obligation on the Director to be present in the appeal hearing. The Applicant cannot show how her claim was prejudiced by the Director's absence on that occasion.

43. None of the Applicant’s complaints can stand.

44. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator’s reports showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

45. The Director is an interested party. I have reviewed his reports under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 44 above is also true of the Director. He too had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

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

Grounds for appeal

12.  In the Notice of Appeal dated 28 May 2018 the applicant advanced the following grounds of appeal:

(1)  The applicant suffered real prejudice from the lack of legal representation in the later stages of the screening process because she could not understand the definition of BOR2 risk and its significance. 

(2)  Her case on BOR2 should have been referred to the Duty Lawyer Service for further legal advice.

13.  In her skeleton submissions dated 15 August 2018, the applicant repeated the arguments on the lack of legal representation in the Notice of Appeal.  She further submitted that both the Director and the Board had failed to provide adequate language assistance.

14.  The applicant agreed by a letter of 5 June 2018 that the appeal can be heard by two judges.

General principles

15.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]:

“14. …

(1) 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 scrutinizing the decision of the Board due to the seriousness of the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

16.  For the ground of appeal based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  The applicant claimed that she suffered prejudice from not understanding the definition of BOR2 risk.  However, she failed to identify what information she could have provided or what argument she could have raised before the Board.  Nor has she, even at this stage, suggested that there might be any further material that could be put forward in relation to this.  There is no merit in this ground.

17.  As for the lack of language assistance, we note that the applicant has admitted that she has access to language assistance (§32 CALL-1).  At [4] of the Board’s Decision, the Board said that her rights had been explained to her (presumably through an interpreter).  The applicant failed to identify any real prejudice from the lack of language assistance by the Director or the Board.  Like the judge, we are satisfied that the applicant had had no difficulty in presenting her arguments.  There is no merit in this ground.

18.  There is no merit in the appeal and we dismiss the appeal accordingly.