RE KISAN PURNIMA

CACV 600/2018

[2019] HKCA 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 600 OF 2018

(ON APPEAL FROM HCAL NO. 386 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 12 December 2018, refusing to grant the applicant leave for judicial review.

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2579.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Nepal.  She entered Hong Kong illegally on 10 April 2009 and surrendered to the Immigration Department in or about July 2010.  On 20 July 2010, she lodged a non-refoulement claim.  Her claim was based on her fear of being harmed, or even killed, by Mr Pandit because she was from a low caste and because she refused to marry him.  She claimed that Mr Pandit was an active supporter of the Nepali Congress Party and was powerful.

4.  By a Notice of Decision dated 28 January 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 20 October 2017, the Director rejected her claim on BOR 2 risk.

5.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearings on 1 August 2016 and 18 January 2018, the Board dismissed the applicant’s appeal on 14 February 2018.  The Board found that apart from the applicant’s bare assertion that she was threatened by her parents and friends that Mr Pandit would kill her and her family members if she did not marry him, she had never been subjected to any physical and/or mental suffering in Nepal.  She did claim that Mr Pandit wanted to rape her but she managed to push him away and escaped unharmed.  The Board concluded that the applicant had failed to establish a consistent pattern of gross flagrant or mass violation of human right exists in Nepal and her allegation of threats by Mr Pandit did not fall within the definition of “severe physical or mental suffering” as required by law to qualify as torture, see [45] – [52] of the Board’s decision.  The Board further pointed out that the availability of state protection and possible internal relocation would further lower the risk.  With the aforesaid reasons, the Board found that the applicant had failed to establish her case for non-refoulement protection claim on all applicable grounds. 

6.  On 9 March 2018, the applicant filed her Form 86 for leave to apply for judicial review against of the Director’s and the Board’s decisions.  In the supporting affirmation filed on the same day, she advanced the following grounds in support of her intended challenge:

(1)   Lack of legal representation throughout her appeal/petition with the Board;

(2)   Lack of language assistance;

(3)   The Director had failed to explain why her claim for BOR 2 risk failed;

(4)   The Director had failed to apply the country of origin information (“COI”) properly in assessing her case;

(5)   The Board had allowed the Director to be excused from the Board hearing without any reason;

The Judge’s decision

7.  On 12 December 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [30] – [38] for his refusal to grant leave:

“ Discussion

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

31. 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’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). 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.” (CACV 219/2018 [2018] HKCA 570, para 14(1))

32. It is not true that the Applicant had not received the Director’s letter dated 12 June 2017 inviting her to submit additional facts for the consideration of BOR2 risk. The Applicant did respond to that letter and sent the Director a letter dated 23 June 2017.

33. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearings. She cannot show how the Director’s absence could prejudice her appeal.

34. The Applicant complained there was a lack of legal representation for her appeal to the Board. She had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 28 January 2016.

35. 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 (CACV 284/2017 Re Paswan Shibu Lal, para 21). The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. The Applicant raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

37. 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 her 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

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

The Appeal

8.  In the Notice of Appeal filed on 21 December 2018, the applicant set out following grounds of appeal:

“(1) The Deputy Judge has made an oversight by saying that I have failed to show how my case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

(2) This is because I was not represented for the BOR 2 consideration before the Director and therefore I have been prejudiced.

(3) Since I did not understand the content of the letter, I could only repeat the claims.  The Director is at the duty to explain to me what BOR 2 means and to inform me of my rights, which have not been achieved.  Without being fully informed and/or communicated with in the process, such process is unfair and should be overturned.”

9.  In compliance with the direction given by Master Au-Yeung on 21 January 2019, the applicant lodged her written submissions on 27 February 2019 in which she reiterated her complaints as set out in the Notice of Appeal. 

10.  At the hearing of the appeal on 1 April 2019, the applicant did not raise any further matter.

Discussion

11.  On ground (1), as rightly found by the Judge at [35] of the CALL-1 Form, a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  Further, the applicant failed to identify any further information relating to BOR 2 risk which she could have provided.  She had thus failed to identify any real prejudice. 

12.  On ground (2), we do not see any reasonably arguable basis to suggest that the lack of legal representation for the applicant’s BOR 2 claim had rendered the process unfair. On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent of the BOR 3 risk, the persecution risk, and the torture risk.

13.  On ground (3), we do not see any merit in respect of the challenge based on the lack of language assistance.  We note that all court documents emanating from the applicant were written in English, indicating either that the applicant is familiar with the English language or that she had the means and access to such language assistance as she needed. 

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.