RE SHERPA PEMBA

CACV 76/2018

[2018] HKCA 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2018

(ON APPEAL FROM HCAL 376/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 23 March 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 30 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 22 August 2016 and 10 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong on 27 June 2015 as a visitor and was given permission to stay for three days.  He overstayed and surrendered to the Immigration Department on 10 July 2015.  He lodged a non-refoulement claim on 20 January 2016. 

3.  The applicant’s claim was based on three sources of threats: 1) the home-induced abortion and consequent death of his girlfriend, Karina, for which he said he was blamed by her family, who made threats against him; 2) threat from members of the Congress Party, of which Karina’s father was a prominent member; and 3) the Nepalese police because he was wrongly accused of raping Karina.

4.  By a Notice of Decision dated 22 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 10 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 May 2017, the Board dismissed the appeal on 30 June 2017 (“Board’s Decision”).

7.  At [5.7] of the Board’s Decision, the Board found that the applicant was unreliable.  The Board was satisfied that even if the applicant’s case were true, state protection would be available for the applicant ([27]) and internal relocation would be viable ([16]).

The deputy judge’s decision

8.  The applicant filed a Form 86 on 10 July 2017.  The Form 86 contained no ground for seeking relief. 

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

(1)   the Board failed to sufficiently research and enquire into the Country of Origin information (“COI”);

(2)   the Board cherry-picked COI;

(3)   the Board failed to consider the human rights abuses in Nepal;

(4)   the Board wrongly rejected the applicant’s case;

(5)   the Board has failed to consider whether state protection exists;

(6)   the applicant did not receive the Immigration Department’s letter inviting additional information relating to BOR 2 assessment, which was why he did not submit any additional evidence to the Director to support this claim;

(7)   at the Board hearing, the interpreter did not explain the meaning of BOR2 to him;

(8)   the Board failed to address the negative aspects of COI, especially relating to police corruption;

(9)   the Board did not give him a chance to provide additional information in the appeal by adjourning the appeal hearing to enable him to do so; and

(10)   the applicant’s enemies are powerful. State protection will not be available to the applicant.  Also, it is not possible for the applicant to be safely relocated in Nepal.

10.  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 14 to 23 of the CALL-1 form:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. The applicant seeks to judicially review both the decisions of the Director and the adjudicator of the TCAB. In my view, this is not appropriate here. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. There is no room for a judicial review of the Director’s decision; there is no special reason or exceptional reason here. I have considered his grounds of his application against the decision of the adjudicator of the TCAB only.

15. The affirmation does not list grounds succinctly so I have tried to discern for myself what the applicant’s grounds are. He submits the adjudicator failed to sufficiently research and enquire into the Country of Origin (“COI”) information. In the hearing, the applicant submitted the adjudicator did not consider the information objectively. The affirmation continues to relate to COI and submits the adjudicator failed to take into account relevant information that supported the applicant’s evidence and placed full weight on information of little relevance. Therefore, his decision to dismiss the applicant’s appeal was unreasonable. There are no particulars provided to support these grounds.

16. The applicant submits the adjudicator failed to consider the human rights abuses in Nepal. It also includes a submission that the adjudicator has rejected the applicant’s facts.

17. The affirmation sets out under a separate heading of “error in law” and starts with a complaint that the adjudicator has failed to consider whether state protection exists. It seems to also include the applicant’s complaint that he did not receive any Immigration Department letters relating to his BOR 2 claim which was why he did not submit any additional evidence to support this claim. He accuses the interpreter during the appeal hearing of not interpreting properly in relation to conversation about the BOR 2 information. The adjudicator also did not give him a chance to provide additional information in the appeal by adjourning the appeal hearing.

18. There is mention of a Raj who is a famous person of a political party who has verbally threatened the applicant. This political party has killed hundreds of thousands of people all over Nepal which is why the applicant cannot relocate internally. It is also a mistake by the adjudicator to treat his problem as a private dispute; it is a political problem and issue. Then there is mention of his home being attacked and his brother being shot for refusing to disclose the applicant’s whereabouts.

19. None of the facts in the preceding paragraph have ever been mentioned before the TCAB or the Director. They perhaps relate to another applicant and the person drafting this affirmation has made a mistake but no Raj appears on the applicant’s claim nor was his brother shot or his home attacked.

20. As for the other grounds mentioned above, there are no particulars to support those grounds. The adjudicator has essentially rejected the applicant’s evidence and found he is not a credible witness. He gives adequate reasons for his finding and sets them out in his decision. He has clearly analysed and referenced COI material but in light of his finding on credibility, he need not go into it in depth.

21. If one of the grounds put forward by the applicant was that the adjudicator did not consider state acquiescence or extended concept of state acquiescence, then the short answer is that the applicant did not rely on the extended concept of state acquiescence. This is not a case where state authorities or other acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. The applicant said he made a report and he thought the police were not investigating it. That is not sufficient evidence. The adjudicator has already made a finding that he did not believe the applicant was tortured every day for 9 days by the police in Kathmandu. There is no merit in this ground.

22. The applicant says in his affirmation and repeated at the hearing that he did not receive the Immigration Department’s letters relating to the BOR 2 risk and in the appeal hearing the interpreter misinterpreted the conversation about the BOR 2 risk. He said the adjudicator refused to let him adjourn the appeal to obtain information to support a BOR 2 risk. Yet, none of this is recorded in the decision of the adjudicator. If the applicant had gone so far as to ask for an adjournment, then I am sure it would be in the decision. I doubt the interpreter managed to interpret everything correctly except for the conversation about the BOR 2 risk. I find no merits in these submissions relating to the rejection of the BOR 2 risk claim.

23.   None of the grounds put forward in the affirmation by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  His decision was not Wednesbury unreasonable.  None of the grounds were reasonably arguable and that means there is no realistic prospect of success in this application.  I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 28 March 2018 the applicant stated that:

“… the [applicant] will suffer hardship if he is to return to his home country due to the threats he is still currently facing over there and it is due to the usage of outdated cases being used by the Director of Immigration”

12.  The applicant failed to comply with the direction made by this court on 13 July 2018 requiring him to lodge skeleton submissions by 22 August 2018.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing on 20 September 2018 was therefore vacated, and the applicant was debarred from lodging any written submission.  The applicant was informed that his appeal would be dealt with on paper on the basis of the materials already filed with the court.

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 504, 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.  The sole ground of appeal mentioned in the Notice of Appeal does not identify any alleged error on the part of the judge below.  In any event, the two decisions of the Director had been overtaken by the Board’s Decision, and we can see nothing amiss in the judge’s reasons for refusing to give leave to bring judicial review proceedings.

17.  The applicant has failed to advance any valid ground of appeal and his appeal must accordingly be dismissed.