SHRESTHA SANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 311/2024, [2025] HKCA 38

On Appeal From [2024] HKCFI 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2024

(ON APPEAL FROM HCAL 1569 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 30 July 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against (inter alia)  the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 31 May 2019 refusing the applicant’s application for late filing of a notice of appeal against the decision of the Director of Immigration (“the Director”)  dated 6 February 2017 (“the Director’s 2^nd Decision”)  rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1].

Background

2.  The applicant is a national of Nepal. She last entered Hong Kong on 14 April 2013 as a visitor, but she overstayed and was arrested by the police on 26 April 2013.  She thereafter lodged a torture claim by way of a written representation on 6 June 2013, which was later treated and assessed as a non-refoulement claim under the Unified Screening Mechanism.

3.  The applicant’s claim was based on a fear of being harmed or killed by her neighbours in Nepal by reason of a debt she incurred, as well as by her abusive husband by reason of domestic dispute. The details of the applicant’s claim have been summarised by the Judge at [2] to [7] of the Judge’s decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 24 April 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s 1^st Decision to the Board, for which an oral hearing was held on 4 January 2016.  The Board, by reason of material inconsistencies and discrepancies in the applicant’s evidence, cast serious doubt on her alleged fear of harm from her neighbours and husband.  In any event, suitable options of internal relocation within Nepal were available to the applicant in order to reduce the risk of harm, if any.

6.  Accordingly, the applicant’s appeal was dismissed by the Board’s 1^st Decision.

7.  Thereafter, it transpired that a claim for non-refoulement under the BOR 2 risk[6] had become available to the applicant, which was accordingly assessed by the Director.  In this connection, the Director by a letter dated 20 January 2017 invited the applicant to provide additional information, if any, by 3 February 2017.  The applicant’s letter of 31 January 2017 in response was received by the Director on 6 February 2017, and it crossed with the Director’s Notice of Further Decision of 6 February 2017, which assessed the applicant’s claim under the BOR 2 risk on the materials and evidence she had previously submitted.

8.  By the Director’s 2^nd Decision, the applicant’s non-refoulement claim under the BOR 2 risk was refused.

9.  The applicant sought to appeal against the Director’s 2^nd Decision to the Board, but filed the relevant notice of appeal/petition (“NoA”)  late on 31 October 2017 (by over 8 months).  The Board, after considering the applicant’s reasons for the delay, dismissed the applicant’s application to file the NoA out of time by the Board’s 2^nd Decision.

The Judge’s decision

10.  The applicant filed a Form 86 on 10 June 2019 seeking to, purportedly, judicially review the Board’s 2^nd Decision as well as the Director’s 1^st and 2^nd Decisions.

11.  In her supporting affirmation filed on the same day, the applicant complained, inter alia, that she was prejudiced by (i)  the lack of an oral hearing before the Board before it reached its 2^nd Decision; (ii)  the lack of legal representation and was not “advised of [her BOR 2 rights] properly”; and (iii)  her “limited English proficiency”.

12.  After summarising the facts and background of the case, taking into account the applicant’s oral submissions at the hearing and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [20] of the CALL-1 Form:  

“15. On 10 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board as regard respectively her BOR 2 Claim and the refusal of late filing of her appeal, and in her supporting affirmation she essentially repeated her submissions made in her late Notice of Appeal to the Board of not being given any opportunity to present her BOR 2 Claim to the Director or with any oral hearing, and that the Board was biased against her in refusing to allow the late filing of her Notice of Appeal but without providing any necessary or relevant details or particulars or elaboration to corroborate her such bare assertions, nor was she able to do so at the hearing of her application apart from just repeating her claim as before of still having problem and danger in her home country. As such, and in the absence of any proper and relevant elaborations with supporting details or particulars as to how the Director or the Board had erred in their decisions, I do not find any reasonably arguable basis for her intended challenge of either decisions of the Director or the Board.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the Board refused the late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision by correctly taking into account of her reasons as stated in her application for late filing in her Notice of Appeal as well as all other relevant matters of facts within its knowledge under Section 37ZT (2)  of the Ordinance, including the merits of the appeal such as her failure to raise any new issue which might be relevant to BOR 2 risk in her case as well as its earlier, and in my view correct, finding as to the availability of reasonable internal relocation to the Applicant in its consideration of her claim/appeal under all the other applicable grounds. As such, and in the absence of any error of law or procedural unfairness in either decisions of the Board being clearly and properly identified by the Applicant, and given the factual basis of even her own case of private personal disputes with her neighbours and husband which simply did not engage the BOR 2 ground, I do not find any reasonably arguable basis to challenge either decisions of the Board.

18. Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective earlier decisions that the risks of harms in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. In the premises, and having 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 or in the Board’s decision to refuse the late filing of the Applicant’s appeal as regard the BOR 2 Risk.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her leave application.”

Grounds for appeal

13.  In the Notice of Appeal filed on 2 August 2024, the applicant stated, without elaboration, that she disagreed with the “decision maker authorities”, that she “oppose[d] the Judgment of the High Court” and that she “did not think” that her “case” had been “determined fairly”.

14.  In her written submissions lodged on 21 October 2024, the applicant contended (again without elaboration)  that the “lack of assistance” provided to her before the Judge was “an error of law” which had somehow put her at a “disadvantage”.  She repeated that the determination of her case was “procedurally unfair” because she was “never provided with proper legal and language assistance”.

15.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing and submitted that it would be dangerous for her to be in Nepal, and that she was not in contact with anyone there and did not know where her husband and children were.

Discussion

16.  By reason of the principles stated in Re Moshsin Ali [2018] HKCA 549, the applicant’s application before the Judge should have been treated as one for leave to apply for judicial review against the Board’s 2^nd Decision only.

17.  The Board’s 2^nd Decision refused the applicant’s late filing of the NoA (for her appeal against the Director’s 2^nd Decision).  Section 37ZT(3)  of the Immigration Ordinance (Cap. 115)  (“the Ordinance”)  provides that the Board may allow the late filing of the NoA if the applicant provided sufficient evidence in writing to satisfy the Board that (i)  she had exercised all due diligence to file the NoA within the prescribed time; and (ii)  her failure to do so was due to circumstances beyond her control.

18.  Regardless of procedural breaches committed by the applicant and the lack of adequate explanation therefor, the Board, in exercise of its discretion to extend time for appeal, is obliged to consider the merits of the applicant’s claim.  See Re Khan Kamal Ahmed [2019] HKCA 377 at [20]; Re Qasim Ali [2019] HKCA 430; Re Castillo Raquel Adona & anor [2022] HKCA 1053.[7]

19.  In the present case, it appears that the Board in its 2^nd Decision did not expressly indicate that it had undergone an exercise of examining the merits of the applicant’s claim, nor did it indicate that it had had regard to documents or information submitted by the applicant in connection with the matters considered by the Director and the Board in their 1^st Decisions.  See Re Sandhu Vinny [2023] HKCA 1261 at [31]. 

20.  What the Board did do was to simply consider the question of whether in the circumstances there were special circumstances which would render it unjust for the Board to disallow the late filing of the NoA (see [13]-[26], Board’s 2^nd Decision). 

21.  While we agree that, as noted by the Judge at [17] of his decision, the Board did briefly refer to the fact that, inter alia, the applicant failed to raise “a new issue that she might be sentenced to death by a court or tribunal upon refoulement” (see [25(b)] of the Board’s 2^nd Decision)  and to its previous finding on internal relocation (at [25(d)]), we do not consider such mere references as indications of the Board having duly and sufficiently considered the merits of the applicant’s claim based on the BOR 2 risk (c.f. the Judge’s comments at [17] of the CALL-1 Form).

22.  Thus, on a plain reading of the Board’s 2^nd Decision, it appears that the Board has fallen short of the requirements as set out in Re Khan Kamal Ahmed and Re Qasim Ali. 

23.  However, such failure does not automatically lead to the grant of leave to the applicant to apply for judicial review against the Board’s 2^nd Decision.  The question for this Court is, whether, had the Board considered the merits of the intended appeal pursuant to Re Qasim Ali and section 37ZT(3)  of the Ordinance, it would have in any event and inevitably concluded that the said intended appeal was unmeritorious.  See Re Castillo Raquel Adona at [21]-[24]; Re Sandhu Vinny at [27].

24.  For the following reasons, we are of the view that in the circumstances of this case, the Judge was in any event correct in refusing leave for the applicant to apply for judicial review against the Board’s 2^nd Decision.

25.  The present case is not one where the Board had (in failing to consider the merits of the applicant’s intended appeal before it refused to allow the applicant to file the NoA out of time)  failed to consider the merits of the underlying non-refoulement claim on all four applicable grounds, i.e. the BOR 2 risk, the BOR 3 risk, the persecution risk and the torture risk.  See Re Qasim Ali at [5]; Re Sandhu Vinny at [26].

26.  In the present case, the applicant’s intended appeal to the Board by way of the NoA was only as against the Director’s 2^nd Decision, which only concerned an assessment of the applicant’s non-refoulement claim based on the BOR 2 risk, but not the other applicable grounds.  As previously held by this Court, there is force in the argument that issues under the BOR 2 risk are inseparable from those under the BOR 3 risk, such that “upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk”.  See Re Kulwinder Kaur [2022] HKCA 48 at [59]; Re Sandhu Vinny at [29]-[30].

27.  In this connection, it is pertinent to note that, as also noted by the Board at [12(f)] of its 2^nd Decision, the applicant did not, by way of applying for leave to apply for judicial review, seek to challenge the findings on the BOR 3 risk by the Board in its 1^st Decision, which affirmed the relevant findings by the Director in its 1^st Decision.  It follows that, absent any additional information provided by the applicant pertaining specifically to the BOR 2 risk, the unchallenged findings by the Director (and the Board)  on which the claim under the BOR 3 risk was refused would also inevitably form the basis of the dismissal of the claim under the BOR 2 risk.  See Re Sandhu Vinny at [32]-[33].

28.  The applicant’s letter of 31 January 2017 stated that she was told by her friend that one of the four neighbours who had assaulted her over her failure to repay a debt to them was furious over the outstanding debt. It further stated that the applicant had heard that her husband had experienced trouble over her debt as her creditors had asked him to pay them; he was therefore angry with her. As the Board at [25(c)] of its 2^nd Decision pointed out, these were matters which had already been addressed by the Board in the Board’s 1^st Decision. They would therefore not have affected the Board’s assessment of the merits of the intended appeal.

29.  In the application in the court below, the applicant raised complaints of procedural unfairness relating to the lack of a proper opportunity to present her claim. These were dealt with by the Judge at [15] of the CALL-1 Form, found to be unmeritorious, and rejected by the Judge.

30.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

31.  In her written submissions in support of her Notice of Appeal, the Applicant complained again of a lack of legal and language assistance.

32.  The applicant’s complaint of prejudice by reason of her lack of proficiency in English is unfounded and of little or no merit.  We note that she was able to, either by herself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

33.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

34.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.