JAG BAHADUR CHHANTYAL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 184/2020

[2020] HKCA 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 184 OF 2020

(ON APPEAL FROM HCAL NO 1633 of 2018)

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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 decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 5 June 2020 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 1 August 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 16 March 2017 rejecting his non-refoulement claim.

The applicant’s case

2.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 4 October 2010 and was then released on recognizance on 8 November 2010.  On 4 March 2014, the applicant lodged his non-refoulement claim.

3.  The applicant’s claim is based on his fear of being harmed or killed by members of the Maoist party for refusing to join them. His case was set out in details in [14] of the Director’s decision and summarised in [9] to [16] of the Board’s decision. 

4.  In gist, the applicant’s case is that he is a member of the Nepalese Communist Party – United Marxist Leninism (Amalay) but in about December 2004, 4 armed members of the Maoist Party came to his home and threatened to kill him should he refuse to join the Maoist Party.  The Maoist Party at the time was an extreme political communist party which wanted to expand and gain more power.  The applicant was scared and decided to leave Nepal for Malaysia in December 2004 by obtaining a working visa through an agent.  The applicant returned to Nepal in about December 2005 but he stayed in Kathmandu until he went back to his home village in about March 2006 where he opened a grocery shop.  From then on until June 2008, the Maoist members came to the applicant’s shop for about 15-20 times, verbally threatened to kill him if he refused to join the Maoist Party.  In about June 2008, the applicant closed his grocery shop and moved to Kathmandu as he did not feel safe in his home village.  After staying in Kathmandu for about 1½ years without being disturbed by the Maoist members, he came to Hong Kong.  

5.  On 7 October 2010, the applicant made a claim to the Immigration Department under the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment.  By a Notice of Determination dated 25 January 2011, the Director rejected his claim.  The applicant then lodged a petition against the decision but was further rejected by the Director on 27 May 2011.

6.  The applicant lodged a claim for non-refoulement protection by way of a written representation dated 4 March 2014 and filed a Supplemental Claim Form in August 2015.  Two scheduled screening interviews were arranged but the applicant requested to suspend the interviews on the ground that he was mentally unfit, although the medical report of the applicant stated that he was physically and mentally fit to attend interviews. Two further interviews were arranged for the applicant but he did not attend the first one and at the second interview, he claimed that he was dizzy and could not finish the interview.  Subsequently, the Director invited the applicant to provide further documents in addition to the information he has already given.  Despite numerous reminders and extensions of time, no further information was provided by the applicant.

7.  By his decision dated 16 March 2017, the Director stated that the applicant’s claim for non-refoulement protection would be assessed on applicable grounds other than torture risk[1], as this ground had been previously refused.  The Director considered the applicant’s claim having regard to the other applicable grounds, including persecution risk[2], BOR 2 risk[3] and BOR 3 risk[4] grounds and rejected the applicant’s claim under all grounds. 

8.  The applicant appealed against the Director’s decision to the Board and attended a hearing before the Board on 20 December 2017. At the hearing, the applicant elected not to answer any question or give any evidence.  

9.  By its decision dated 1 August 2018, the Board rejected the applicant’s appeal and confirmed the Director’s decision.  The Board found that[5]:

“36. I am satisfied even if the Petitioner’s claims as to his problems in Nepal prior to coming to Hong Kong are accepted in full, the changes in that country mean that he is no longer at risk of serious harm at the hands of the Maoists in his home village. I am satisfied that, even if it were the case that there was a risk of such harm in his home village, it would not be unreasonable to require him to relocate to Kathmandu given that he has lived and worked there safely before coming to Hong Kong.

37.  In these circumstances, I am satisfied that the Petitioner has not established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment by members of the Maoist party or anyone else should he be returned to Nepal.”

Application for leave to start judicial review

10.  On 10 August 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  The applicant did not put forward any specific ground for his application other than stating in his affirmation that his life will be in danger if he is refouled to Nepal.

The Judge’s Decision

11.  After hearing the applicant on 23 August 2019, the Judge refused leave for the reasons set out in [13] –[15] of the Form CALL-1[6] :

“13. The applicant appeared before me and confirmed that he was able to express himself freely before the immigration officer. He also confirmed that he had elected not to give evidence or answer any question before the Board.

14. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board had committed any error in coming to its conclusion.

15.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Appeal to Court of Appeal

12.  By a Notice of Appeal filed on 15 June 2020, the applicant appealed the Judge’s order to this court.  He stated his grounds as follows:

(1)  He will face hardship if he is to return to his country;

(2)  The Board has relied on incredible source of news and information about his home country which is not officially recognised or is simply hearsay;

(3)  The Board has relied on cases which are outdated considering the dramatic changes; and

(4)  The Board has made groundless speculations as a result.

13.  The applicant filed a written submission on 24 August 2020 submitting that high standards of fairness are required for making a decision by the decision maker.  He cited various authorities including ST v Betty Kwan[7] and Secretary for Security v Sakthevel Prabakar[8], and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed. However, he did not provide any elaborations for his arguments which did not support his grounds of appeal.

Legal Principles

14.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

16.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  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.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[9] and we will not repeat them here.  

17.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[10]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[11] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

18.  We heard the appeal on 9 November 2020.  At the hearing, the applicant said he has nothing to add apart from what he has already submitted on the papers to the court.

Discussion

19.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

20.  We are of the view that the matters stated in the notice of appeal and the applicant’s submission do not constitute viable grounds of appeal.  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 errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision.  

21.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

22.  For the above reasons, we are of the view that the appeal has no merit. Accordingly, we dismiss the appeal.