RE DANGOL SURESH KUMAR

CACV 443/2022

[2023] HKCA 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2022

(ON APPEAL FROM HCAL NO. 2369 OF 2018)

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JUDGMENT

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

1.  The applicant lodged a Notice of Appeal on 7 November 2022 against the decision of Deputy High Court Judge Lung (“the Judge”) given on 25 October 2022[1]. By that decision, the Judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting his non‑refoulement protection claim.

2.  On 7 November 2022, the applicant gave written consent to the disposal of this appeal on paper. Despite the directions given by the Registrar of Civil Appeals, he has not lodged any written submission to support his appeal.

3.  The applicant is a national of Nepal aged 34 years old. He entered Hong Kong on 4 March 2015 and was granted permission to stay for one day. He overstayed and surrendered to the Immigration Department on 11 March 2015. On 27 March 2015, he raised a non-refoulement claim on the basis that he would be harmed or killed by the family members of his girlfriend, Najima, and the gangsters hired by them because Najima’s family disapproved of their relationship.

4.  The details of the applicant’s claim were set out in [6] of the Director’s decision and [17] to [29] of the Board’s decision.

5.  In summary, the applicant claimed that in 2014, he came to know Najima with whom he developed a relationship. Najima’s family strongly opposed their relationship due to their differences in religion and caste in that Najima is a Muslim and her family was rich and influential while the applicant is a Hindu of the Dangol caste. The gangsters hired by Najima’s family harassed, threatened and slapped the applicant. In early 2015, the applicant and Najima decided to elope, but they were found out and intercepted by gangsters armed with knives. Najima was taken away while the applicant was verbally threatened and pushed around before he managed to escape. He has not seen Najima since. Some months later, when the applicant was leaving home, Najima’s relative by the name of Jiten and two gangsters rode two motorcycles up to him and knocked him down. The applicant sustained minor injuries that did not require medical treatment. He did not report the incident to the police. On the advice of his friend, the applicant paid an agent to make arrangement for him to come to Hong Kong to seek protection.

6.  By a Notice of Decision dated 9 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

7.  The applicant appealed the Director’s decision to the Board. The appeal was heard on 20 August 2018 during which the applicant gave evidence and answered questions from the Board. By a decision dated 3 October 2018, the Board dismissed the appeal.

8.  Primarily, the Board considered that the evidence suggested that the gangsters only sought to pressurize the applicant to leave Najima, but did not intend to carry out their threats of killing him. The Board found that the applicant failed to establish on the evidence that he had been subjected to torture, ill-treatment, persecution or risks of arbitrary deprivation of life. The Board further found internal relocation alternatives reasonably available, which would reduce or negate any risk of harm he may face. The Board concluded that he failed to show he is entitled to non-refoulement protection on any of the applicable grounds.

9.  The applicant filed a Form 86 and affirmation on 26 October 2018 to seek leave to apply for judicial review against the decision of the Board. In his supporting affirmation, the applicant raised a number of matters which was summarized by the Judge as follows (at [12] of the Form CALL-1):

“(1) No reasonable basis for rejecting his evidence.

(2) Failure of considering the extended form of state acquiescence; failure of considering the country of information (“COI”).

(3) Procedural impropriety and irregularity: failure to investigate the COI; failing to consider state protection in Pakistan [Nepal]; failing to call for psychological or psychiatric report; applying wrong standard of proof; different decisions maker, i.e. the immigration and the adjudicator; no proper basis for consideration of internal relocation; no provision of legal assistance for his appeal; the adjudicator failed to consider the relevant evidence.

(4) Irrationality: selectively placing weight on relevant materials and irrelevant materials; failing to consider a consistent system of human right violations; failing to apply the high standards of fairness.

(5) Error in law.”

10.  The applicant did not request for an oral hearing. The Judge dealt with the application on the papers. By a Form CALL-1 dated 25 October 2022, the Judge dismissed the application as he found the intended judicial review had no prospect of success. He gave his reasons in [16] to [19] as follows:

“16. Those grounds in paragraph 12 above are a jumble of discursive reasons, which the applicant might have borrowed from other cases not relevant to his application. I shall address some of the issues which are of substance. The others are his bare assertions and opinions without any evidence in support. My conclusion is that they are not valid reasons to challenge the Board’s Decision.

17. On the issue of there are two different persons, one being the immigration officer and the other being the adjudicator to make decisions, this is the procedure under the law. The immigration officer is the primary facts finder whereas the adjudicator acted as the supervisor and secondary fact finder on re-hearing of the case. There is nothing amiss in this procedure.

18. On the issue of no legal assistance for his appeal, the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

11.  By a Notice of Appeal filed on 7 November 2022, the applicant appealed the Judge’s decision to this Court. The grounds of appeal stated in the Notice of Appeal may be summarized as follows:

(1)  The way in which the court and the authorities dealt with the applicant’s case was procedurally unfairly. The Judge failed to acknowledge and give weight to his language incapability. The applicant could not read and write English but he was not given language or legal assistance.

(2)  The applicant was not aware that he could request an oral hearing in the Form 86. He was not able to elaborate on his grounds in his affirmation as he could not get legal assistance or help from friends who could understand legal jargons.

(3)  The court failed to discharge its duty towards the applicant, who is unrepresented. The court did not consider or discuss the applicant’s grounds or hold an oral hearing, when it is under a duty to ensure that the process is procedurally fair. It should have held a hearing so that the applicant might explain the errors in the Board’s decision through an interpreter.

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  In brief, 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 Country of Origin Information 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. Further in an appeal to the Court of Appeal, the focus is on the Court of First Instance’s decision and reasons. The Court of Appeal will only overturn the decision if it has been demonstrated to be erroneous in law or facts.

14.  For the reasons set out below, we are of the view that the grounds put forward by the applicant have no merits:

(1)  Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, a judge may determine an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application. As the applicant did not make a request for an oral hearing, the Judge was entitled to deal with the application on the basis of the papers filed in the case.

(2)  Also, although the applicant complained he did not have an opportunity to elaborate on his grounds in an oral hearing, he has given no indication as to what were the elaborations that he would have made had there been an oral hearing. He has therefore not shown what was the prejudice or unfairness that had occurred to him by reason of his application being determined on paper.

(3)  As to the complaints that the Judge did not consider or give weight to the fact that the applicant was unrepresented and did not know English, it is evident that the Judge was keenly aware that the applicant was acting in person.

(4)  The Judge had also given consideration to his argument that it was procedurally unfair that he did not have assistance for his appeal before the Board. At [18] of the Form CALL-1, the Judge applied this Court’s decision in Re Ahmed Syed Rafiq [2018] HKCA 178 at [22], which held that the high standard of fairness did not prescribe that a non-refoulement claimant has an absolute right to free legal assistance at all stages of the proceedings. As with the applicant in Re Ahmed Syed Rafiq, the applicant was legally represented in the screening process While he may not be conversant with the English language, there can be no doubt that he has been able to obtain help, as manifested by the papers he filed in the court below and in this appeal. We are of the view that the ground of procedural unfairness is not made out.

(5)  There is also no proper basis for the complaint that the Judge did not consider the applicant’s grounds in support of the application for leave to apply for judicial review. As the decision shows, the Judge had summarized the arguments put forward by the applicant and given reasons for rejecting them.

15.  We have separately considered the Board’s decision. We note that the Board had accepted the facts put forward by the applicant, but took the view that, on the evidence, the requirements for non-refoulement protection under the applicable grounds were not made out. We do not discern any legal errors, irrationality or procedural irregularities in the Board’s treatment of the evidence, and its findings and conclusions on the facts and the law. We agree with the Judge that the intended judicial review has no prospect of success, and that leave to apply for judicial review should be refused.

16.  For the above reasons, we dismiss the appeal.