RAI NANDESHWAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 88/2023, [2023] HKCA 803

On appeal from [2023] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2023

(ON APPEAL FROM HCAL NO 186 OF 2019)

________________________

________________________

________________

J U D G M E N T

________________

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

1.  On 10 March 2023, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 22 March 2023.

2.  The applicant is 38 years old and a national of Nepal. He entered Hong Kong illegally on 6 October 2007 and was arrested by the police on the same day. On 11 October 2007, he raised a torture claim which was rejected by the Director of Immigration (“the Director”) on 27 December 2013. He lodged a non-refoulement claim on 8 January 2014 on the basis that, if refouled, he would be harmed or killed by (i) his neighbour named Limbu Roshan (“Roshan”) who was a member of the Communist Party of Nepal (“Maoists”) as he had attacked Roshan in 2000; (ii) the Maoist rebels from Sunkhani as he had refused to join their party or give them money, and he had killed two of their members in 2007. He also feared that he would be arrested by the police for the killing in 2007.

The decision of the Director

3.  As the applicant’s torture claim had already been rejected, his non-refoulement claim was assessed under the unified screening mechanism on BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. By a Notice of Decision dated 22 November 2017, the Director rejected the applicant’s claim.

4.  Taking into account the absence or low intensity and frequency of past ill-treatment from Roshan, the Maoist rebels from Sunkhani and the Nepali police, the Director assessed that the level of future risk of harm is low and the alleged ill-treatment has not attained the requisite minimum level of severity for non-refoulement protection. The Director further considered that the availability of state protection and internal relocation alternatives in Nepal further lowers or negates the perceived risk. Taking the evidence as a whole, the Director arrived at the conclusion that the applicant’s assertions on the material parts of his claim cannot be relied upon due to multiple inconsistencies.

The decision of the Board

5.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 31 August 2018. The Board found his evidence lacking in credibility as he kept changing his story and rejected his evidence. There was no accepted evidence to suggest that if he returns to Nepal he will be subjected to the risk of deprivation of his life under BOR 2, and no evidence he has been subjected to cruel, inhuman or degrading treatment or punishment covered by BOR 2 and 3 risks. There is no evidence that the Nepali Government was involved in his disputes with Roshan or the Maoist rebels or that he was targeted. The applicant was able to obtain his passport in 2007 and travelled outside his country without encountering difficulty. The Board concluded that he had no well-founded fear of persecution with reference to the non-refoulement principle under the Convention.

6.  The Board added that although the applicant’s evidence was rejected, if he had feared punishment for allegedly killing two Maoist rebels, a person fleeing from prosecution or punishment for an offence would not be considered a refugee unless it is justified. There is no evidence to suggest there will be discriminatory application of the Nepali laws by the government or judiciary, or that the Nepali police will enforce the laws unfairly, or that excessive punishment will be imposed.

7.  The Board therefore rejected the appeal on 11 January 2019.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 21 January 2019 to seek leave to apply for judicial review against the Board’s decision. In gist, he stated the following grounds in his affirmation:

(1)  The Director and the Adjudicator determined his case wrongly and unfairly without addressing the issues in his claim properly; (Ground 1)

(2)  It was procedurally unfair in that he was not provided with legal representation in his appeal before the Board. English is not his first language, and there was lack of legal or language assistance, making it hard for him to conduct his appeal before the Board; (Ground 2)

(3)  The Director and the Adjudicator failed to apply high standards of fairness in failing to provide him a proper translation of their decisions to enable full understanding of the reasons for rejecting his claim; (Ground 3)

(4)  The Director and the Adjudicator adopted a formulaic and biased approach in assessing his claim, especially when the same piece of Country of Origin Information (“COI”) was used both to support his assertion of the overall conditions of Nepal including police ineffectiveness and questionable judicial procedures, whereas at the same time the same COI was used to show that reforms have been ongoing in respect of the police and there are objective positive results in recent years. His claim was rejected without considering his personal experience of corruption in Nepal. (Ground 4)

The judge’s decision

9.  DHCJ Bruno Chan considered the application and the oral submissions by the applicant.

10.  The judge found that the applicant’s Grounds 1 and 4 are bare and vague assertions without relevant details, particulars or elaboration. He did not find any merits in the complaints as it is clear from both decisions that the Director and the Board had assessed his claim based on his personal circumstances asserted as well as the relevant COI.

11.  As for Ground 2 regarding not being provided with legal representation in his appeal before the Board, the judge pointed out that the high standards of fairness as laid down in the relevant case law do not prescribe that claimants in non-refoulement cases must have an absolute right to free legal representation at all stages of the proceedings.

12.  As to the complaint under Ground 3 of not being provided with a translation of either the decision of the Director or the decision of the Board, there is no question that he was still being represented by Duty Lawyer Service at the time of the Director’s decision, and was able to proceed with his appeal to the Board without problem. It also seemed clear that he had legal assistance when he filed his Form 86. The judge did not find that the applicant would appear to be prejudiced by the lack of translation of either decision, and did not find this ground to be reasonably arguable.

13.  The judge concluded there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 10 March 2023.

Grounds of appeal

14.  The grounds of appeal stated in the Notice of Appeal filed on 10 March 2023 may be summarised as follows:

(1)  There was procedural unfairness as the court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant;

(2)  The judge failed to acknowledge the applicant’s language incapability, that he was self-represented and unable to read and write English and has failed to consider the significance and level of unfairness the lack of language and legal assistance had on him;

(3)  The court failed to consider any of the grounds raised in his affirmation;

(4)  The judge erred in his consideration of the lack of interpretation service since there was no interpretation service provided to the applicant after the Director’s decision;

(5)  The applicant was unable to identify errors in the Director’s decision at the oral hearing before the Board because of his education level and lack of legal representation, even though there was an interpreter during the hearing.

15.  He repeated his grounds of appeal in his skeleton submissions lodged on 1 June 2023, again emphasizing there was procedural unfairness due to his inability to understand the decisions and the lack of language assistance and legal representation. He also claimed that the Director has not made a finding as to his credibility. He contended that his case should be reconsidered based on unfairness and unreasonableness due to lack of legal representation before the Board and during the issuance of the decision of the Director. He claimed that he should be allowed to provide any further grounds of appeal and make further submissions after the documents have been read back to him and after a “reasonable time frame”.

Legal Principles

16.  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.

17.  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 the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI 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.

18.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, 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.

Analysis and disposition

19.  The applicant’s grounds and submissions in this appeal are just bare assertions without evidence in support.

20.  In both the Notice of Appeal and his written submissions, the applicant mainly repeats his assertion that there was unfairness due to the lack of legal representation and his inability to understand English. These points have been fully dealt with by the judge with adequate reasoning. There is no unfairness, and no evidence of prejudice caused by the lack of translation of either the decision of the Director or the decision of the Board. As pointed out by the judge, the applicant was clearly represented by the Duty Lawyer Service at the time of the Director’s decision and apparently had legal assistance when he subsequently filed his Form 86 with his grounds for seeking relief.

21.  The applicant was legally represented when he presented his case to the Director. When he testified during his appeal hearing before the Board, he was provided an interpreter and was able to answer questions raised by the Adjudicator without difficulty. The applicant has not raised any further grounds that would show unfairness caused by the lack of legal representation in his appeal before the Board.

22.  The Director, the Board and the judge have all given detailed reasons for rejecting the applicant’s claim. Contrary to his contention, the Director has scrutinized his evidence as a whole and made the finding that his assertions on the material parts of his claim cannot be relied upon due to multiple inconsistences. The Board has also duly considered the applicant’s claim under all applicable grounds including the risk of persecution and decided that the applicant failed to substantiate his claim of risk of harm upon refoulement.

23.  In summary, the applicant has not adduced any evidence to refute the Board’s findings. He also failed to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24.  No viable ground has been put forward to reverse the decision of the judge. We therefore dismiss the applicant’s appeal.