RE KHANAL HARI

CACV 1 /2019

[2019] HKCA 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2019

(ON APPEAL FROM HCAL NO 579 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 an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 19 December 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2769, refusing leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 March 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 25 July 2017 (“the Director’s Decision”).

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 6 April 2015 and was arrested by the police in Hong Kong on the same date.  He lodged a non-refoulement claim on 11 April 2015. 

3.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 26-30 of the Board’s Decision.

4.  Briefly stated, the applicant claimed that if he were to return to Nepal, his life would be in danger because he did not share the ethnic background with, and refused to join the political group, Loktantra Forum (“LF”).  He claimed that he was born in an area where the majority was Madhesi people who support LF.  In around 2013, members from LF asked the applicant and his family to join LF and if they refused to do so, they would be forced to leave the village.  He further claimed that he was assaulted by LF people in around 2015. 

The Director’s Decision and the Board’s Decision

5.  By the Director’s Decision, the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk[1], the persecution risk[2], the torture risk[3] and the BOR 2 risk[4]. 

6.  The applicant appealed the Director’s Decision to the Board.

7.  The appeal was heard on 12 February 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board dismissed the applicant’s claim.  The Board had considered the fact that the applicant’s version of events might be inconsistent due to the language barrier and his fear.  However, the Board still found that he was not a credible witness. First of all, the applicant’s claim made no logical sense.  Secondly, his claims were inconsistent and contradictory such as that he had forgotten the most frightening event in his life and thirdly, his evidence was unsupported by any independent evidence and contradicted the country of origin information (paragraphs 58-65 of the Board’s Decision).  Further, the Board found that internal relocation was available to the applicant (paragraph 66 of the Board’s Decision).

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 9 April 2018 seeking leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  In his supporting affirmation filed on the same date, the applicant advanced the following grounds which were summarized by the Deputy Judge at paragraph 23 of the Deputy Judge’s Decision:

“23. The Applicant complained he did not have legal representation and language assistance for appeal to the Board. He complained the Director was excused from the Board hearing.”

Prior to dealing with the grounds of appeal, the Deputy Judge held that the applicant cannot seek leave for judicial review against the Director’s Decision:

“18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.”

9.  Thus, the Deputy Judge proceeded to consider the grounds of the applicant’s intended challenges against the Board’s Decision. The leave hearing took place on 11 July 2018 and the applicant was assisted by a Nepali interpreter.  The applicant also confirmed that a friend rendered assistance to the preparation of his Form 86 and the supporting affirmation. After considering the documents and hearing the applicant, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 27-35 of the Deputy Judge’s Decision:

“Discussion

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

28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising the decision of the Board due to the seriousness of 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.”[9]

29. The Applicant complained there was lack of legal representation for his appeal to the Board.

30. 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.[10]

31. The Applicant lamented he had to face the Adjudicator alone and no lawyer could stand up for him should there be any unfairness. Yet, he failed to show there was any unfairness in the appeal hearing.

32. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters when he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

33. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearing. He could not show how the Director’s absence would prejudice his appeal.

34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision 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 his case. The report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

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

Grounds for appeal

10.  The applicant filed the Notice of Appeal dated 2 January 2019 to appeal the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“1. The high standard of fairness has not been achieved in my case. The Deputy Judge has erred in assuming that ‘the applicant could find someone to assist him with interpretation/translation and dealing with English document at all material time. Such help has never been guaranteed, consistent or professional. English is not my first language and all documentations so far are nothing but very specific and technical that not anyone who understands the English language will be able to understand what it refers to.

2. I therefore seek a reconsideration of my case to be heard by way of an oral hearing with an interpreter arranged.”

11.  In his skeleton submissions filed on 10 April 2019, the applicant repeated his grounds of appeal and further elaborated that a deprivation of language assistance limited his choices of advancing further appeals, which amounted to procedural unfairness.

Discussion

12.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

13.  First of all, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  Secondly, 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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  In light of the above-mentioned principles, we do not find any merits in the applicant’s grounds of appeal. 

16.  First of all, the Deputy Judge’s statement that the applicant had language assistance in dealing with English documents at the material time was not an assumption but a well-reasoned conclusion.  The applicant in fact had the language assistance both before the Director and before the Board.  He also had a friend who assisted with the preparation of his Form 86 and supporting affirmation.  Thus, we agree with the Deputy Judge that the applicant had the language assistance at the material time. 

17.  Secondly, we note that in the applicant’s supporting affirmation for the leave application, he was able to identify the alleged errors by the Director and the Board and cite legal authority in support.  In addition, the applicant was able to identify the alleged error by the Deputy Judge and provided written submissions in English on the alleged error.  Therefore, there is nothing to suggest that the applicant suffered any real prejudice from the alleged lack of language assistance.  In our view, the applicant has failed to demonstrate any procedural irregularity in the proceedings before the Director and the Board, or any arguable basis to challenge the fairness of the process.

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

Disposition

19.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.