RE KC SHOVA

CACV 497/2018

[2019] HKCA 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 497 OF 2018

(ON APPEAL FROM HCAL NO. 252 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  This is an appeal against the decision of Campbell Moffat J (“the Judge”) given on 28 September 2018 in HCAL 252/2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Nepal.  She first came to Hong Kong on 26 July 2015 and was permitted to stay until 3 August 2015.  She did not depart and overstayed since 4 August 2015.  She surrendered to the Immigration Department on 27 August 2015.  On 27 November 2015, she raised a non-refoulement claim.  Her claim was based on the fear that she would be harmed or even killed by some gangsters in Nepal because she and her family were subjects of extortion threats.

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1938.  We shall not repeat the same here.

3.  By the Notice of Decision dated 5 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 20 October 2017, the Board dismissed the appeal on 19 January 2018.  The Board found that the applicant’s evidence was unconvincing and improbable and rejected her claim that she and her husband were victims of extortion.  The Board pointed out that despite the alleged threats and money demand for 2 to 3 years, the applicant did not pay and nothing actually happened to her and her family.  The Board did not accept that the gangsters would have any interest in the applicant and concluded that there is no foreseeable risk of harm/torture to the applicant upon her return to Nepal.  The Board rejected the applicant’s case of non-refoulement under all applicable grounds.

The Judge’s decision

5.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 15 February 2018 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant put forward the following grounds for judicial review:

(1)   Lack of legal representation for her appeal before the Board;

(2)   The bundle for the appeal hearing before the Board was not read to her;

(3)   The decision of the Board was not read to her.

6.  On 28 September 2018, the Judge gave her 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 [11] – [15] for her refusal to grant leave:

“11. The Applicant submits that she had no representation for her appeal to the TCAB; the bundle was never read to her and the decision of the TCAB was never read to her. There were no other grounds of review.

12. The Applicant had the assistance of an interpreter throughout the actual hearing and had the procedure to be adopted during the hearing explained to her. She had an opportunity to put her case and to answer questions raised by the Adjudicator and accepted that she did so. There is no record within the papers of any complaint being made to the Adjudicator in respect of preparation time; not understanding the bundle or the procedure to be adopted or that she was given no opportunity to fully advance her case and address any concerns. This ground has no merit.

13. The fact the Applicant was unrepresented in her appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their case. Their assessment is on a case-by-case basis. There was little merit in her claim which was considered carefully by both the Director and Adjudicator. The Director of Legal Aid cannot be criticised for refusing her application. There is no merit in this ground.

Conclusion

14. I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determinations, which was open to her on the facts and eminently reasonable.

15. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success.”

The Appeal

7.  In the Notice of Appeal filed on 4 October 2018, the applicant put forward the following grounds of appeal:

“1. I reiterate that given I was unrepresented in my appeal has been procedurally unfair, not because there was no legal representation, but because the court and authorities did not exercise caution and diligence in handling my case as a self-represented litigant.

2. Due to the language barrier, I could not understand the situation. For examples, I did not know I had to request for a hearing. Furthermore, just because there was no record within the papers of any complaint being made to the Adjudicator in respect of preparation time; not understanding the bundle or the procedure to be adopted or that I was given no opportunity to fully advance my case and address any concerns is an overstatement as I could not possibly have raised my concerns or rights if I was not aware of any. I was genuinely scared facing an adjudicator by myself and no one else to guide me.

3. I therefore seek a reconsideration of my case with an oral hearing arranged.”

8.  In compliance with the direction given by Master Au-Yeung on 2 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.

9.  We heard the appeal on 1 April 2019 and the applicant did not raise any further matter in support of her appeal. 

Discussion

10.  The applicant merely sought to regurgitate the argument put before the Judge which was rejected.  We agree with the Judge’s finding at [14] of the CALL-1 Form that the Director and the Adjudicator had considered the applicant’s case carefully and applied the law correctly.  They had proper basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable.  They made no errors of law nor was there any procedural unfairness. 

11.  Most importantly, in an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in light of the grounds of appeal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA 583.  If no viable ground is put forward to reverse the Judge’s decision, 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. We see no merit in the grounds of appeal as they do not identify any error in the Judge’s decision and thus the appeal plainly has no prospect of success.   

12.  As we do not see any prospect of success in the intended application for judicial review, we dismiss the appeal accordingly.