RE SAROJ KUMAR KARKI

CACV576/2019

[2020] HKCA 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 576 OF 2019

(ON APPEAL FROM HCAL 986 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Saroj Kumar KARKI, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 2 December 2019 refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 25 May 2018 (“Board’s Decisions”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim[1] (“NRF Claim”) by a notice of decision dated 5 July 2016 and a notice of further decision dated 1 August 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Bases and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 53, is a fear of being harmed or even killed by (1) Maoists[2] for refusing to join their liberation army; and (2) Hindu extremist groups for having converted to the Christian faith.

3.  The events giving rise to such fear have been set out in detail in [15] of the 1^st Director’s Decision and [14] to [27] of the Board’s Decision and in gist in [1] to [6] of the Form CALL-1 dated 2 December 2019, [2019] HKCFI 2451 (“Form CALL-1”).  Briefly:

(1)  The applicant was born and raised in Sarlahi District, Janakpir Zone, Nepal. 

(2)  In about 1999 or 2000, during the civil war between Maoist insurgents and the Nepalese government, Maoists would frequently come to the applicant’s village to recruit adult males for their military activities against the government.  Specifically, they wanted the applicant as a karate instructor.

(3)  The applicant had no intention to join the Maoists and always put up some excuse to hold them off.  The Maoists grew increasingly impatient with the applicant. 

(4)  Then on 8 August 2001, after midnight, while the applicant was resting at home trying to recover from a heat stroke and fever suffered from working in the field earlier that day, some armed Maoist sabducted him from his home to their camp in a jungle where he was beaten up, deprived of food and given very little water.  The Applicant fell even more ill. 

(5)  On the 9^th day of his detention, he was eventually allowed to go home by pretending to agree to join the Maoists after seeing his family one more time.

(6)  Upon returning home, the applicant immediately fled to Kathmandu where he stayed with his elder siblings |without incidents for around 6 months.  During his stay in Kathmandu, Maoists apprehended his brother in Sarlahi District many times for the applicant’s whereabouts, threatening to kill him if they found him.

(7)  On about 19 February 2002, the Maoists started to attack Kathmandu.  The applicant fled to Pokhara 3 to 4 days later to take shelter at a cousin’s place.  He stayed in Pokhara for 2 to 3 months until May 2002 when the Maoist attack spread to Pokhara.

(8)  The applicant returned to Kathmandu where he made arrangement to leave the country, which he eventually did in November 2004 when he flew to Hong Kong, after obtaining a Nepalese passport on 19 August 2004.

(9)  While overstaying in Hong Kong, the applicant formally converted to Christianity in 2005, thereby risking anti-Christian violence perpetrated by Hindu extremist groups.

Entry into Hong Kong and lodgment of NRF Claim

4.  The applicant arrived in Hong Kong as a visitor on his Nepalese passport on 9 November 2004.  He was permitted to stay until 16 November 2004.  He overstayed and was arrested by the police on 21 September 2007.  On 26 October 2007, he was convicted of possession of an identity card relating to another person and sentenced to 3 months’ imprisonment which he served until 24 November 2007.

5.  As stated in footnote 1 above, the NRF Claim commenced as the Torture Claim which was raised on 8 November 2007.  By letter dated 22 October 2013, through the Duty Lawyer Service (“DLS”) which was advising and representing him, the applicant submitted his completed Torture Claim Form (“TCF”).[3]  Upon the commencement of the unified screening mechanism on 3 March 2014, the Torture Claim was treated as a non-refoulement claim.  The applicant, through the DLS, advised the Director that it was unnecessary for him to fill in a supplementary claim form as all information had been set out in the TCF.

6.  In processing the NRF Claim, in place of a screening interview (which the Director’s representative(s) tried to fix 7 times without success), on 26 June 2015, the applicant completed the Question Sheets served on him by the Director through the DLS.  

Director’s Decisions

7.  The 1^st Director’s Decision found the NRF Claim unsubstantiated under torture risk[4], persecution risk[5] and “BOR 3” risk[6].  Insofar as it is material to this appeal, one of the findings made by the Director was the availability of reasonable state protection based on certain COI.

8.  Following the 1^st Director’s Decision, by a letter dated 19 June 2017, the applicant was invited to submit additional relevant facts on or before 3 July 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground.  In the absence of any such additional information, by the 2^nd Director’s Decision, the NRF Claim was also rejected for failing to establish a “BOR 2” risk[7].

Appeal to Board and Board’s Decision

9.  The applicant appealed to the Board against the 1^st Director’s Decision on 19 July 2016.

10.  The Board held a rehearing on 27 February 2018 but the applicant chose to exercise his ‘right of silence’ notwithstanding the Board’s caution that his refusal to answer its questions might affect the Board’s assessment of the NRF Claim.  The Board was deprived of the opportunity to clarify certain doubts or concerns that it had going to the core of the claim and had to assess the applicant’s case based on the information he had provided to the Director.  In consequence of the applicant’s refusal to testify, the Board did not give weight to the information he provided to the Director.  In particular, the Board refused to accept that the Maoists ever targeted the applicant or manhandled or mistreated him for refusing to join the Maoists.  Second, even the applicant conceded that Maoist insurgence in Nepal lasted from 1996 to 2006.  The Maoists have since abandoned their militant past and are no longer engaged in terrorist activity.  Nepal is not unsafe because of the Maoists.  Third, there is nothing to indicate that the Maoists are still hunting for the applicant for breaking his promise to join them, after having abandoned their terrorist past for over a decade.  Fourth, as for the applicant’s fear of persecution/harm in Nepal because of his conversion to Christianity, it was unfounded, if not chimerical.  While Hinduism is the religion for most of the population in Nepal and followers of non-Hindu faiths do suffer some discrimination and even violence, such incidents are however isolated and sporadic.  There is nothing to indicate that such ill-treatment is systematic or involve the government.  There is generally religious tolerance in Nepal.  The Board rejected the appeal on all 4 applicable grounds[8] for non-refoulement protection on 25 May 2018. 

Application for leave for judicial review and Judge’s Decision

11.  By the notice of application for leave to apply for judicial review filed in HCAL 986/2018 on 1 June 2018 (”Form 86”), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision[9] on grounds summarised by the Judge in [12] of the Form CALL-1 as follows:

“(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance in translating the documents in the hearing bundle to enable him to better prepare for his appeal before the Board;

(3) failure on the part of the Director to take proper consideration of the relevant COI as to the effectiveness of the police in Nepal and to give proper explanation as to its assessment of state protection in Nepal; and

(4) failure on the part of both the Director and the Board to fully and fairly determine his claim which was rejected simply for the sake of rejecting all non-refoulement claims by adopting a very uniformed approach in coming to the same conclusion”.

12.  After hearing the application in open court on 3 July 2019, at which the applicant was present and was assisted by a Nepali interpreter, the Judge refused leave. His reasons can be found in [13] to [21] of the Form CALL-1:

“13. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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,Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting his case to the Director, and in his appeal he chose to decline to testify before the Board or to answer questions put to him by the adjudicator. I do not find anything amiss arising from the lack of legal representation in his appeal process or that he had been prejudiced in any way, and I do not think this ground is reasonably arguable.

15. As for his complaint under Ground (2) of not being provided with translation of those documents in the hearing bundle for his appeal before the Board, for the same reason as above, he should be well familiar with most of those documents including his TCF and answers to the questions sheet which were completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such complaint to the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding his complaint under Ground (3) that the Director failed to properly consider the COI in his assessment of the effectiveness of the police in Nepal, not only was it just a bare assertion without any particulars or elaboration, but that it is plainly factually wrong when it is evidently clear that the Director did just that with thorough and detailed analysis set out in para 70 of his decision.  In the absence of any error or inadequacy in the Director’s analysis and consideration being shown by the Applicant, there is simply no basis or merits in this complaint of the Applicant.

17.  The same can be said about the Applicant’s complaint under Ground (4) which is again without any particulars or elaboration that I do not find any basis or merits in such a bare assertion that it is plainly not reasonably arguable for his intended challenge.

18.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

19.  Furthermore, in the absence of any evidence even on the Applicant’s own case of any risk of personal harm or persecution in Nepal due to his conversion to Christianity in Hong Kong, as held by the Court of Appeal, the mere existence of a pattern of anti-Christianity activities by Hindu extremist groups in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: Re RS CACV 206/2012, 20 August 2013,para 59; and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018.  As such I do not find any reasonably arguable basis to challenge such finding of the Board.

20.  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.

21.  For these reasons 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.”

Appeal to Court of Appeal and grounds of appeal

13.  By the notice of appeal filed herein on 12 December 2019, the applicant appealed against the refusal of leave for judicial review.  His grounds of appeal were presented in 11 paragraphs, some of which are not quite comprehensible.  Doing the best we can, they can be summarised as follows:

(1)  It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant. (paragraph 1) (Ground 1)

(2)  Notwithstanding his inability to read or write English, after the 1^st Director’s Decision, he had not been provided with any language or legal assistance, without which he could not fully understand the decisions that had been made against him, formulate proper grounds for judicial review or grounds of appeal or effectively appear at hearings, much to his disadvantage.  The Judge was unfair in failing to acknowledge or give weight to his language incapability or consider the significance and extent of unfairness to the applicant arising from his lack of legal or language assistance or in dealing with his 1^st and 2^nd proposed grounds for judicial review concerning his lack of legal representation and language assistance. The applicant requested for the translation and language assistance at the appeal hearing before the Court of Appeal (paragraphs 2, 3, 5, 7, 9 and 11) (Ground 2)

(3)  The Board has wrongly dismissed the case based on credibility.  It is unfair that the assessment of the applicant’s credibility was left entirely to the Board in this case (as the Director made no such assessment), which means that a case becomes unappealable once the Board determines one to be incredible.  (paragraphs 4 and 8) (Ground 3) 

(4)  The Director and the Board used “formula approach” to deal with country of origin information (“COI”), using such COI that favours rejection of his claim. (paragraph 6) (Ground 4)

(5)  The finding of availability of state protection should not have been made by the Director had effect been given to the COI that corroborated the applicant’s claim which showed the ineffectiveness, inefficiency and even corruption of the police (paragraph 10) (“Ground 5”).

14.  In his 15-paragraph skeleton submissions dated 8 May 2020, the applicant sought a reconsideration of his case on the bases of unfairness and unreasonableness.  He contended that there has been an error of law and there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness.  The judge failed to maintain the high standards of fairness.  It was not true that he could understand the Board’s Decision while it was explained to him by his friend. He was not able to understand the “legal jargon” without the help of any legal representative.  What he understood is that that his appeal had been dismissed but not the contents of the Board’s Decision.  The lack of language assistance in enabling the claimant to understand his claim to the fullest is discriminatory and should be deemed unlawful.  Further, he believed that the judge was biased - refusing to believe him from the beginning and giving more weight to the Board than to him.  The Judge had therefore failed to exercise “diligent duty of care” towards the applicant as a “non-represented litigant who does not understand full English”.  On this ground alone, his case should be remitted back to the lower court.  He reiterated his request for language and legal assistance, without which he could not lodge a proper appeal.  Upon the provision of such assistance, he should be given time to formulate further grounds of appeal and make further submissions.

15.  The applicant appeared in person at the hearing of the appeal on 27 May 2020.  He had nothing to add to his notice of appeal or skeleton submissions.

Court of First Instance’s role in judicial review in non-refoulement claim

16.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[10]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

Ground 1

18.  Other than the allegations raised in the other grounds of appeal, Ground 1 is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how he or his case has not been treated with caution or diligence.

Ground 2

19.  It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore 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.

20.  In this case, the applicant did already have the benefit of legal representation from the DLS in presenting his case to the Director.  Other than a general complaint, he has not pointed out in what ways he was prejudiced before the Board or the Judge due to his being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

21.  As for interpretation services, they are provided at the hearings before the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of his case.

Ground 3

22.  As summarised in [10] above, although the Board did refuse to accept that the applicant was ever targeted by the Maoists, neither its 2^nd nor 3^rd findings had anything to do with the applicant’s credibility but each would have resulted in the rejection of that part of the NRF Claim premised upon the fear of the Maoists.  And the 4^th finding, which necessitated the dismissal of the applicant’s alleged fear of Hindu extremist groups on the ground of his religious belief, also did not depend on an assessment of the applicant’s credibility.

Grounds 4 and 5

23.  As stated in [16] and [17] above, the Director and the Board are tasked with finding facts, including the availability of state protection or otherwise, which would necessarily involve the weighing of competing COI.  Neither the Court of First Instance nor the Court of Appeal should re-assess this or other factual aspects of a non-refoulement claim, at least not without cause.

24.  In the premises, the applicant did not in the notice of appeal or written submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

25.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

[1] Which originated as a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”).

[2] Which collectively refers to the Communist Party of Nepal (Maoist), the Communist Party of Nepal (Unity Centre – Masal) and other Maoist splinter groups and the Unified Communist Party of Nepal (Maoist) (“UCPN(M)”) formed in 2009 by their unification. 

[3] By the same letter, the Director was asked to ignore all the applicant’s past screening records and to treat him as having made a fresh claim.

[4] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[5] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[6] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[7] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.

[8] Although the applicant had technically not appealed against the 2^nd Director’s Decision.

[9] The Form 86 also sought to have the Director’s Decisions judicially reviewed.  However, applying Moshsin Ali [2018] HKCA 549, the Director’s Decisions, having been superseded by the Board’s Decision which represented the final decision on the NRF Claim at the end of its processing, were not susceptible to judicial review once an appeal to the Board had been pursued by the applicant.

[10] [1954] 1 WLR 1489.