RE SHRESTHA MAHESH

CACV 234/2018

[2018] HKCA 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 234 OF 2018

(ON APPEAL FROM HCAL 566/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan of 8 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Nepal.  He arrived in Hong Kong on 7 March 2013 and was given permission to remain as a visitor until 14 March 2013.  He did not depart upon the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 24 December 2013 and lodged his claim for non-refoulement protection on 10 January 2014.  His claim was based on the fear that, if he returned to Nepal, he would be harmed or killed by his creditor because he did not repay the loan he borrowed from the creditor.

3.  The facts of the case were set out by the judge in the CALL-1 Form at [2018] HKCFI 1229, at [1] to [5].

4.  By a notice of decision dated 26 May 2015, the Director of Immigration assessed the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]. The director determined the risks against the applicant and rejected his claim for non-refoulement protection. 

5.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 3 October 2016, but the applicant elected not to testify at the hearing. 

6.  The director subsequently assessed the applicant’s claim based on the BOR 2 risk[4]. By a notice of further decision dated 29 June 2017, the director decided against the applicant. 

7.  On 18 August 2017, the Board gave its decision. It did not find the applicant’s claim to be credible. Further, the Board found that the alleged threat not attaining the minimum level of severity.  It was also assessed that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  The Board also took account of BOR 2 risk though there was no appeal in that respect by the applicant. The Board dismissed the appeal.

The judge’s decision

8.  On 31 August 2017, the applicant applied to the court for leave to apply for judicial review.  As formulated in the Form 86, the intended application for judicial review was against the two decisions of director only.  Neither the form 86 nor the applicant’s supporting affidavit dated 31 August 2017 contained any grounds for seeking reliefs. The applicant had exhibited the decision of the Board in his affidavit.

9.  The applicant did not request an oral hearing for his application for leave to apply for judicial review.  After considering materials available before him, the judge refused to grant leave to the applicant to apply for judicial review on 8 June 2018.  The judge’s reasons for refusal were set out in paragraphs 11-13 of the CALL-1 form:

“11. On 31 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in his Form 86 nor in his supporting affidavit of the same date did he put forward any grounds for his intended challenge other than merely exhibiting copies of the decisions of both the Director and the Board as well as the hearing bundle used in his appeal before the Board.

12. Nevertheless, having proceeded to considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim, as they were entitled to arrive at their conclusion based on the facts of the applicant’s own case, and I am unable to see any ground upon which the applicant might reasonably rely or argue for his intended challenge.

13. In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

10.  The applicant filed a notice of appeal on 15 June 2018.  While no ground of appeal was contained in the notice of appeal, the applicant set out the following grounds in his supporting affirmation dated 15 June 2018:

(1)   The judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)   The judge failed to provide detailed reason in support of [his] decision.

11.  In the exhibit marked “A” to the said affirmation, the applicant also put forth the following grounds:

(1)   The Board misdirected itself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;

(2)   The Board failed to carry out sufficient inquiry into the Country of Origin Information (“COI”) and home regard to up to date research on the conditions in Nepal;

(3)   The Board failed to take into account of some relevant COI materials, and cherry-picked and took into account irrelevant COI materials;

(4)   The Board failed to evaluate and to make a finding as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violation of human rights;

(5)   The Board failed to assess whether state protection existed in Nepal under the extended concept of state acquiescence;

(6)   The Board put weight on those materials which were irrelevant, incorrect, inaccurate, and of no factual basis;

(7)   The Board failed to call for psychological and psychiatric evaluations report;

(8)   The Board applied the wrong standard of proof; and

(9)   The applicant received insufficient legal representation from his assigned duty lawyer.

12.  The applicant also lodged his skeleton argument on 21 August 2018.  In his skeleton arguments, the applicant referred to ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and submitted that high standards of fairness were required in determination of torture claims. It was also submitted that the Board erred in approaching the appeal by finding fault with the decision of the director and that the Board should consider the applicant’s country of origin conditions.  The applicant also stated that the decision maker was under a common law duty to act fairly. 

13.  We heard the appeal on 13 September 2018.

Discussion

14.  Before we address the grounds of appeal, it is necessary to highlight the following general propositions (see Re Tutul [2018] HKCA 552):

(a)   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 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 their decisions.

(b)   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. 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.

(c)   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 requirement in Ladd v Marshall [1954] 1 WLR 1489. 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.

(d)   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.

(e)   In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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.

15.  Further, in a case where the Board has made a decision, it supersedes the earlier decisions of the director. In judicial review, the Court will focus on the decision of the Board, see Re Moshsin Ali [2018] HKCA 549. When the applicant does not have additional grounds or materials to support a claim of BOR 2 risk, the absence of an effective appeal to the Board on BOR 2 risk is immaterial, see Re Alam Mohammad Nazir [2018] HKCA 558; Re Gurjant Singh [2018] HKCA 467; Re Monjur Hossain [2018] HKCA 476.

16.  In the present case, after giving rigorous examination and anxious scrutiny to the materials before him, the judge found no reasonably arguable basis to challenge the findings of the Board. 

17.  The grounds of appeal in the main body of the affirmation of 15 June 2018 are plainly unmeritorious. Given the findings of the Board and the nature of the applicant’s own case, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

18.  Given the applicant’s failure to state his grounds for his application for leave to apply for judicial review in his Form 86 and affidavit of 31 August 2017, the judge did give adequate reasons for refusing leave.

19.  The grounds set out in Exhibit A of the applicant’s supporting affidavit for this appeal were not advanced before the judge.  As stated above, in general this Court will not entertain new arguments that were not canvassed in the proceedings before the judge. We do not see any basis for departing from this approach in the present case when the applicant did not offer any explanation for his failure to state the same in his application below.

20.  Further, in substance, in Exhibit A, the applicant attempted to argue the matter afresh in the judicial review by raising some general assertions.  As stated above, this is not a course open to him. His belated particulars were general assertions against the Board without any cogent and specific evidence supporting his case. In our view, none of the grounds advanced in the applicant’s supporting affirmation have any merit.   

21.  Having considered the materials before us as well as the submissions of the applicant, we agree with the judge that leave to apply for judicial review should be refused.

22.  For these reasons, we dismiss the appeal.