RE APM

CACV 257/2017

[2018] HKCA 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2017

(ON APPEAL FROM HCAL 280 OF 2017)

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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 appeal against the decision of Deputy High Court Judge Marlene Ng dated 3 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Nepal. He travelled through Guangzhou to Hong Kong on 16 February 2013. After the permission for him to stay expired, he remained here illegally. He was arrested for overstaying on 3 November 2013. On 5 November 2013 he lodged a non-refoulement claim. The claim was based on alleged threat of harm from his creditor Roka who had lent him Nepalese Rupees (“NR”) 1 million. He had only repaid NR 60,000 in 2006 and since 2011 he was forced to work for Roka as a debt collector. In 2012, a debtor called the police when the applicant went to collect debts for Roka. The applicant became scared and fled Nepal.

2.  The Director decided against the claim on 15 July 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a supplemental decision of 25 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After hearings held on 2 November and 7 December 2016, the Board dismissed the appeal on 2 June 2017.

4.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 9 June 2017 did not contain any grounds for seeking relief.  In his affirmation of 9 June 2017, he relied on the following grounds:

(a)   The Board failed to carry out sufficient research and inquiry into the COI conditions, particularly the corruption in Nepalese police.

(b)   The Board failed to consider highly relevant information as found in the limited COI research.  The Board failed to consider relevant COI but picked COI with little relevance.

(c)   The member of the Board was rude and predetermined to refuse the applicant’s claim.

(d)   The member of the Board failed to consider and assess whether state protection existed.

(e)   The applicant did not have the chance to supply further information for his Article 2 claim.  DLS advised the applicant that there was no need to reply to the letter dated 22 September 2016.

(f)   The applicant denied he was asked by the interpreter as to whether he had anything to add.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [23] to [35] in the CALL-1 Form:

“23. APM did not ask for oral hearing of his application for leave to apply for judicial review. I have considered with rigorous examination and anxious scrutiny the papers for the present application by APM. I consider it is appropriate to deal with APM’s application on paper. Upon careful consideration, I am unable to fault the TCAB adjudicator’s decision. He had analysed the materials, claims and evidence with care and caution. He also applied the correct standard of proof. APM’s complaints against him were not made out. I found no substance in APM’s grounds for the present application.

24. In respect of the grounds of review in paragraphs 4(a) above (insufficient research and inquiry into COI materials), 4(b)(i) above (failure to take relevant or relevant parts of COI materials into account and placing weight on COI materials of little or no relevance), and 4(d) above (failure to analyse and assess whether state protection existed under BOR 3 risk), the TCAB adjudicator inter alia specifically addressed APM’s allegations about police corruption in the NCF/Interview and his assertion that the police were corrupt and would not act without being paid a bribe. But APM was never arrested, detained or imprisoned in Nepal, and he did not report the incidents that happened to him to the Nepalese police and to seek protection from them. Further, the COI materials cited in the DOI Decision and considered by the TCAB adjudicator were recent, and covered materials that supported APM’s concerns and those showing recent and ongoing efforts to put in place strategies and programmes to bring out improvement in the delivery of justice. APM had not shown what other COI materials he had provided to the DOI and/or TCAB adjudicator that the latter failed to consider. In my view, these grounds were not arguable.

25. In respect of the ground of review in paragraph 4(b)(ii)-(iii) above (failure to evaluate and make finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violation of human rights, and ignoring evidence of violence towards minorities), Au J in ST v Betty Kwan & anor [2013] 3 HKC 87,[1] 99 said as follows:

‘(1) The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.

(2) The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.’

26. The TCAB adjudicator found that R’s loan to APM and their dispute over such loan were private in nature. There was no evidence that the state was involved in such dispute even though APM said R was affiliated to and was an active supporter[2] of the Maoists group in Nepal. The mere fact that a person had connections with a political group/party did not mean that person’s act represented the official stance taken by that political group/party. There was also no report to the police. APM had never been subjected to any violence, and had never been arrested, detained or imprisoned in Nepal. He departed Nepal via proper immigration channels at its airport without any problem from the government. The TCAB adjudicator noted there was no suggestion the Nepalese government had any adverse interest in APM. In my view, there was no duty on the TCAB adjudicator to proceed further to consider the pattern of violation of human rights and/or general evidence of violence against minorities. There was also no suggestion that APM was a ‘minority’. This ground had no merits.

27. In respect of the ground of review in paragraphs 4(b)(i) and 4(c) above (failure to take relevant or relevant parts of COI materials into account, cherry-picking COI materials, and selectively relying on COI materials that favoured rejection of APM’s claim), 4(i) above (irrelevant facts in the decision by the TCAB adjudicator) and 4(j) (biased and formula approach), these grounds contained no particulars and had no merits.

28. In respect of the ground of review in paragraph 4(e) above (officers being rude and having pre-judged APM’s case, and officers speculating it was merely out of anger/spite that APM was assaulted/tortured/threatened), there was no merit to this ground. First, the present application for leave to apply for judicial review was only directed at the decision of the TCAB adjudicator and not against the DOI Decision and/or DOI Further Decision. Since the hearing before the TCAB adjudicator was by way of rehearing, such complaints against the immigration officers were irrelevant. Secondly, according to APM’s case (as noted in the DOI Decision and the decision of the TCAB adjudicator), he was never assaulted or subjected to any violence. The suggestion in APM’s affirmation that ‘Officer also accepted in a paragraph that I was assaulted and tortured …’ (my emphasis) was not understood.

29. In respect of the ground of review in paragraph 4(f) above (APM was not given opportunity to submit additional facts for his non-refoulement claim in respect of BOR 2 risk), the TCAB adjudicator dealt with such allegation in his decision as follows:

‘(a) There were 2 oral hearings before the TCAB adjudicator on 2 November and 7 December 2016, and APM (who was not legally represented) was assisted by a Nepali interpreter.

(b) The TCAB adjudicator referred APM to the DOI Further Decision, and reminded him the DOI sent a letter to him on 22 September 2016 stating that his non-refoulement claim would be considered under Article 2 of section 8 of BORO, and he was invited to submit any additional facts he thought might be relevant. The TCAB adjudicator also pointed out that no additional facts had been submitted by APM.

(c) APM told the TCAB adjudicator he had taken the letter to the DLS on 5 October 2016 and had to return there the following day as no Nepali interpreter was available. APM said that on 6 October 2016 he was advised by DLS’ staff it was not necessary for him to respond to the letter from the DOI until after his original claim had been decided.

(d) The TCAB adjudicator adjourned the 1^st oral hearing to 7 December 2016 so that the TCAB secretariat could write to the DLS to seek clarification. The DLS replied by letter dated 18 November 2016 stating that no advice had been given to APM along the lines asserted by him at the 1^st oral hearing.

(e) At the 2^nd oral hearing on 7 December 2016, the contents of DLS’ letter were brought to APM’s attention, but he insisted his version of events was correct.

(f) The TCAB adjudicator took the view that ‘there might have been some misunderstanding on the part of [APM] and decided to proceed with the hearing making no adverse finding against [APM] in relation to this matter.’

30. First, I am unable to see how at the oral hearings before the TCAB adjudicator ‘the interpreter did not interpret honestly’. Plainly, the Nepali interpreter did interpret APM’s version of events, which was recorded by the TCAB adjudicator in his decision (see paragraph 29(c) above). Secondly, even if DLS did advise APM it was not necessary for him to respond to the letter by DOI dated 22 September 2016 (but DLS disagreed), the DOI was not at fault in coming to the DOI Further Decision. Thirdly, APM’s failure to provide additional materials or facts on any other absolute and non-derogable rights under BORO, particularly BOR 2 risk, was noted by DOI in coming to the DOI Further Decision. However, the present application for leave to apply for judicial review was only against the decision of the TCAB adjudicator and was not against the DOI Further Decision. Fourthly, at the latest by the time of the 1^st oral hearing on 2 November 2016 before the TCAB adjudicator APM knew he could supplement, amend or add information in relation to his petition (see paragraph 32(b)-(c) below). The 1^st oral hearing was adjourned, but APM did not give additional materials or facts at the adjourned oral hearing before the TCAB adjudicator on 7 December 2016. Fifthly, even for the purpose of the present application for leave to apply for judicial review, APM did not state in his affirmation any additional materials or facts on other absolute and non-derogable rights under BORO, particularly BOR 2 risk, that he wished to rely on. Sixthly, the TCAB adjudicator proceeded correctly in not drawing any adverse inference over this issue, and in coming to this view he carefully considered APM’s account and DLS’ position. Seventhly, it must be remembered that even though the TCAB adjudicator had to assess APM’s non-refoulement claim with a high standard of fairness and as a joint endeavor, it is the duty of APM to establish his non-refoulement claim.[3]

31. In respect of the ground of review in paragraph 4(g) above (decision-maker did not rely on additional facts and grounds to refuse the application in relation to BOR 2 risk without any interview or consideration of his further facts and grounds), I find this to be wholly without merit. Since APM’s case was that he was misled by the DLS into not providing additional materials or facts on other absolute and non-derogable rights under BORO, particularly BOR 2 risk, I am quite unable to see how APM could complain the DOI failed to properly consider and rely on the further/additional facts and grounds that he had submitted. I repeat the discussion in paragraph 30 above.

32. In respect of the ground of review in paragraph 4(h) above (interpreter failed to ask APM whether he had anything further to add or whether he had further observations), the TCAB dealt with this matter in his decision as follows:

‘(a) There were 2 oral hearings before the TCAB adjudicator on 2 November and 7 December 2016 respectively, and APM (who was not legally represented) was assisted by a Nepali interpreter.

(b) At the 1^st oral hearing, the TCAB adjudicator through the Nepali interpreter explained to APM the procedure for the hearing and that he could supplement or amend the information set out in the NCF, Interview, DOI Decision, DOI Further Decision, Notice of Appeal/Petition, and documents/materials referred therein. APM confirmed the information in the NCF/Interview were correct.

(c) The TCAB adjudicator reminded APM of the basis of his claim for non-refoulement as set out in the NCF/Interview, and told him that the issue of internal relocation would arise. APM clarified certain matters raised in the NCF/Interview. When the TCAB adjudicator asked APM whether he had anything to add, he said that in late 2015 his uncle was shot at his home during a looting incident.

(d) I repeat paragraphs 29(b)-(f) above.

(e) APM gave evidence at the hearings and said what he told the immigration officers in the NCF/Interview was correct. He described the looting incident in relation to his aunty and uncle at the end of 2015 (see paragraph 18(c) above). He also said the Village consisted of about 75 houses, and the nearest city was Darbang which was 2 hours away by bus and Kathmandu was about 24 hours away by bus. He also said R (who was married with a young daughter), APM’s parents, the families of APM’s brothers, and the uncle who was shot and aunty lived in the same Village.

(f) At the end of the 2^nd hearing APM was asked if he had anything further to add or whether or not he wished to make any further observations about his petition, and APM ‘said that he still felt he would be at risk if refouled to Nepal.’

33. First, it was plain from the account in paragraphs 29 and 32 above that APM gave evidence and addressed the TCAB adjudicator, and the TCAB adjudicator spoke to him during the 2 oral hearings on 2 November and 7 December 2016 via the Nepali interpreter. This was borne out by the fact the TCAB adjudicator was able to record in his decision not only what he said to APM, but also APM’s responses as well as his evidence (see paragraphs 29(b) – (c) and (e) and paragraphs 32(b) – (c) above). Secondly, although APM blamed the Nepali interpreter for not fulfilling his duty by failing to ask him whether he had any further to add or whether or not he wished to make further observations at the 2^nd oral hearing on 7 December 2016, this was belied by the fact APM did give a response and it was recorded in the TCAB adjudicator’s decision (see paragraph 32(f) above). Nevertheless, I put this aside as there was no oral hearing before this court. Thirdly, at the 1^st oral hearing APM had already been told he could supplement or amend the information set out in the NCF, Interview, DOI Decision, DOI Further Decision and/or Notice of Appeal/Petition (see paragraph 32(b) above). There is no merit to this proposed ground of review.

34. I am unable to find any grounds that showed there was an error of law by the TCAB adjudicator. I see no evidence of procedural unfairness or irrationality, failure to adhere to a high standard of fairness. The TCAB adjudicator’s decision was not Wednesbury unreasonable.

35. In my view, APM’s claim was not reasonably arguable. There was no realistic prospect of success, and I refuse leave for judicial review with no order as to costs.”

6.  In the notice of appeal of 14 November 2017, the applicant advanced the following grounds of appeal:

“1. The Unified Screening Mechanism (‘the USM’) was implemented in Hong Kong in March 2014 following the Court of Final Appeal Judgment in Ubamaka Edward Wilson v Secretary for Security (FACV 15/2011)(‘Ubamaka’). It was mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 (‘Prabakar’) that high standard of fairness should be maintained.

2. There are no resources in Hong Kong for a layman like me to seek legal representation for the BOR 2 consideration by the Immigration Department, Appeal and Judicial Review process and is clearly in violation of the principle of achieving ‘high standard of fairness’ and should be considered a miscarriage of justice.

3. The Judge has wrongly reached the conclusion that the Director of Immigration was not at fault in coming to the Further Decision despite DLS advising me it was not necessary for me to respond to the letter by DOI dated 22 September 2016.  This should amount to procedural unfairness as the Director of Immigration should not have taken the initiative of starting the BOR 2 consideration without first referring my case to the Duty Lawyer Service, where I received my legal advice for the Director of Immigration’s consideration throughout the Notice of Decision.  As the BOR 2 was a consideration before the Director of Immigration, I should have been entitled to the same legal advice as before.  I believe the DLS advised me not to respond to the letter because they did not wish to do additional work given I was not a claimant at the material time.  Whilst the Judge mentioned that it is the duty of me to establish my non-refoulement claim, I submit to you that my establishment has been hindered because of such procedural unfairness.”

7.  The applicant agreed by a letter of 16 November 2017 (written in English) that the appeal can be heard by two judges.

8.  Notwithstanding the direction from the Registrar of Civil Appeals on 7 December 2017, the applicant failed to lodge any written submissions in support of his appeal.

9.  When the appeal came on for hearing on 15 March 2018, the applicant failed to attend.  Instead, a friend of his produced a medical certificate showing that he had attended the A&E Department of Pok Oi Hospital on 14 March 2018 with epigastric pain, and that sick leave from 14 to 16 March 2018 had been recommended.  The court did not regard the medical certificate as sufficient evidence to justify an adjournment, as what is required for this purpose is evidence, usually in the form of a medical report from a doctor, explaining the applicant’s physical condition and setting out the reasons why the applicant was not fit to attend the hearing.  However, as the applicant was not legally represented, the court granted the applicant the indulgence of a short adjournment to 22 March 2018, and gave directions for the further conduct of the appeal.

10.  These directions were notified to the applicant by letter dated 15 March 2018.  The applicant was informed that the hearing was adjourned until 10:30 am on 22 March 2018, and that if he did not then appear, the court would determine the appeal in his absence.

11.  The applicant was further informed that his failure to comply with the directions given earlier for the lodging of a skeleton submission was a breach of his duty under RHC Order 1A rule 3, which the court could treat as a waiver of his right to an oral hearing.  However, the court would allow him a final opportunity to lodge skeleton submissions by directing him to do so by 19 March 2018, failing which the court would regard him as having waived his right to an oral hearing, vacate the hearing date and determine the application based on the materials already before the court.

12.  Notwithstanding these directions, the applicant failed to lodge any skeleton submissions by 19 March 2018.  The hearing date of 22 March 2018 was therefore vacated, and the appeal is now dealt with in this Judgment, following consideration of the materials before the court.

13.  As set out in the Notice of Appeal, the applicant focused on the processing of the BOR 2 risk.

14.  As regards the challenge based on lack of legal representation, 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration by the immigration officer when he advanced his non-refoulement claim.

15.  When he was invited to submit additional facts in respect of BOR 2 risk, he did not provide additional information or material for such assessment.

16.  In the circumstances, the Director was entitled to proceed on the basis that the applicant’s claim under BOR 2 was actually founded on the same primary materials relating to his other claims (prepared with legal representation).

17.  On the facts of this case, we actually cannot see any additional basis for advancing a claim under BOR 2 other than those relied upon in respect of the BOR 3 risk, torture risk and persecution risk.

18.  The applicant also had the full opportunity to advance his case on BOR 2 risk before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.  After hearing him and considering the evidence, the Board found that there was no suggestion that the applicant’s rights under BOR 2 would be violated.

19.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

20.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.