GAUCHAN SUBASH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 471/2020

[2021] HKCA 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 471 OF 2020

(ON APPEAL FROM HCAL NO 2878 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 6 August 2020 dismissing 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 3 December 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2018 rejecting his non-refoulement claim.

2.  The applicant is a Nepali national.  He arrived in Hong Kong on 9 June 2015 and was permitted to remain as a visitor until 16 June 2015.  He did not depart and has overstayed.  On 23 June 2015, he surrendered himself to the Immigration Department.  The applicant lodged a non-refoulement claim on 18 September 2015.

3.  The applicant’s claim was based on the fear(s) that, if he returned to Nepal, he would be harmed or even killed by his father’s creditor and his men.  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1[1]. 

4.  By a notice of decision dated 18 April 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.  By its decision dated 3 December 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board considered that the applicant had never sustained any serious pain or suffering caused by his father’s creditor or his men.  As such, the Board was not satisfied that there was any real risk of harm in the event of refoulement.  Further, because the applicant never reported his father’s creditor’s threats and/or harms to the police (or other government authorities), there was no evidence that the police would not assist the applicant.  Therefore, the Board considered that state protection was available.  The Board also considered that internal relocation was viable, because the applicant had moved away from Kathmandu to Hetauda where he stayed for 2 months without encountering his father’s creditor and/or his people. 

Application for leave to start judicial review

6.  On 17 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief. 

The Judge’s Decision

7.  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 for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the Form CALL-1:

“12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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.’

14.  It seems clear that the Board accepted the facts of the applicant’s case, but considered that it was a private monetary dispute between his family and the creditor without any state involvement and he would have state protection and the option of internal relocation if he returned to Nepal.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to Court of Appeal

8.   By a Notice of Appeal filed on 14 September 2020, the applicant appealed against the refusal of leave for judicial review.  His stated grounds of appeal are that he will face hardship if he were to return to his home country; that the Board relied on sources that are not officially recognized, hearsay or outdated; and that the lack of credible sources of information resulted in the Board making groundless speculations.  

Written Submissions

9.  Pursuant to the Court’s directions, the applicant lodged his written submissions on 18 January 2021.  Those submissions consist of general statements of law quoted from case law without identifying how they relate to or apply in this case.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Board or the Judge.

Legal Principles

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

11.  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. 

12.  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[6] and we will not repeat them here. 

13.  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[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] 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. 

14.  We heard the appeal on 22 March 2021.  At the hearing, the applicant had nothing further to say. 

Discussion

15.  As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings as to the applicant’s credibility.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

19.  For these reasons, this appeal is dismissed.