RE GARBUJA NARMAYA

CAMP 41/2021

[2021] HKCA 1668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 41 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1509/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 14 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 26 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 19 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 27 May 2015 as a visitor and was permitted to remain until 3 June 2015.  She overstayed and was arrested on 18 June 2015.  She lodged a non-refoulement claim on 22 July 2015.

3.  The applicant’s claim was based on threats from her husband.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 19 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 May 2018, the Board dismissed the appeal on 26 July 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [64] of the Board’s Decision, the Board did not accept that the applicant’s fear was well-founded.  The Board did not accept that the applicant would face any real risk of harm from her husband upon her return.  The Board was also satisfied at [66] that there was insufficient evidence to suggest that the authorities in Nepal would fail to protect her and at [43] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 31 July 2018 seeking to judicially review the Board’s Decision which contained the following grounds for judicial review, as summarized by the judge at [11] of CALL-1 Form:

(1)  misdirection in law in that the Board misdirected herself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Nepal;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Nepal and misdirected herself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the Board applying the incorrect standard of proof in her decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

8.  In her affirmation in support of the leave application filed on 31 July 2018, the applicant deposed that:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the Board wrongly found the applicant to be incredible;

(3)  the Board relied on information that was not credible, causing the Board to speculate that it would be safe for her to return;

(4)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13. 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 or her 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.

14. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

15. Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

16. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one 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.

17. 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.

18. 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 her leave application.”

Application for extension of time to appeal and grounds for appeal

10.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  She failed to do so.  By a summons dated 7 September 2020, the applicant sought leave to appeal out of time.  Her application was dismissed by the judge on 28 January 2021.

11.  By a summons filed on 2 February 2021, the applicant applied for an extension of time to appeal against the judge’s decision on 28 January 2021.  In the supporting affirmation she stated that:

“the [judge] was wrong in law in holding that there was no state acquiescence or involvement.

the [judge] failed to provide detailed reason in support of this decision.”

12.  In the written submission filed on 10 May 2021, the applicant contended that:

(1)  the applicant was not legally represented and could not properly present her case;

(2)  in his decision on the leave to appeal application, the judge “just assumed that because I had a legal representative for the appeal process I would be aware of the procedures for the Judicial Review”; and

(3)  the applicant accepted that she “didn’t put forward any proper or valid draft or proposed ground of appeal” because of her lack of knowledge.  If the court would give direction on the submissions she should make, she would be in a better position to put forward her case.

Discussion

13.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing pursuant to Order 59 Rule 14A.

14.  In cases where (like the present case) the judge refused to grant extension of time to appeal, the proper application for an applicant to make is to renew such application before this court instead of appealing against the refusal to grant extension of time: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104.  We therefore treat the application in the summons dated 2 February 2021 as a renewed application for extension of time to appeal.

15.  We have considered the reasons for delay in bringing the intended appeal given by the applicant, as recorded at [4] of the judge’s decision dated 28 January 2021.  Like the judge, we do not accept that the applicant has provided any reasonable explanation for the delay.  We nonetheless go on to consider the merits of the intended appeal.

16.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker.  On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.  Therefore, even though the applicant advanced a ground for judicial review based on state protection, the judge was not required to come to a view on the issue of state acquiescence.  This ground of appeal is without merit.

17.  As for the ground based on the alleged lack of reasons, the applicant did not give any particulars for this ground.  We have also considered the reasons given by the judge at [12] – [18] of CALL-1 Form and we consider that the judge has given sufficient reasons for his decision.  We therefore do not consider that this ground has any merit.

18.  In the written submission, the applicant complained about the lack of legal representation before the judge and in this appeal.  This court has repeatedly held that 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. 

19.  We do not accept the applicant’s submission that the judge made an erroneous assumption about her legal knowledge.  We are also of the view that the alleged lack of legal representation did not cause her any prejudice in the leave for judicial review application.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 2 February 2021 is dismissed accordingly.