RANA MONI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 57/2025, [2025] HKCA 884

On Appeal from [2025] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 57 OF 2025

(ON APPEAL FROM HCAL NO 2402 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Levy (“Judge”)  on 24 January 2025[1] dismissing the applicant’s leave application for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 30 July 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 7 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal born in 1977.  She last arrived in Hong Kong on 28 June 2011 to work as a foreign domestic helper with permission to remain until 10 February 2013 or two weeks after termination of her employment contract, whichever was earlier.  Her employment contract was prematurely terminated on 16 August 2011 and she overstayed from 31 August 2011 onwards.  The applicant surrendered to the Immigration Department on 27 February 2017 and submitted a written signification indicating her intention to lodge a non-refoulement claim in Hong Kong on 25 May 2017 and 25 July 2017.  The applicant’s claim was made on the basis that if she returned to Nepal, her creditor (Mr. Sharma)  would harm or kill her due to her inability to repay a loan.  The factual background of the applicant’s claim was set out at [14] of the Board’s decision.

3.  By notice of decision dated 7 August 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 6 May 2019, during which the applicant gave evidence and answered questions from the Board.  In addition to the applicant’s claimed fear of her creditor, the Board also assessed her claim in relation to fear arising from her inter-caste relationship with her boyfriend (Kami Rakesh).  In favour of the applicant’s credibility, the Board generally accepted the applicant’s factual claims, which included that the applicant had an inter-caste spousal relationship with her boyfriend, that their relationship faced disapproval and discrimination, that the applicant took out a loan from her creditor and was ultimately unable to repay it, that the loan was for her mother’s medical treatment, and that her mother subsequently passed away.  However, the Board did not accept that her creditor had a genuine intention to harm her in consideration of the overall evidence. It also found that there was a significant delay in making a non-refoulement claim by the applicant.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Nepal. It found there was in fact no real risk of harm if the applicant returned to Nepal, because the risk of harm did not reach the requisite level of severity, reasonable state protection would be available to the applicant, and internal relocation to a number of areas within Nepal, such as Kathmandu or Dharan, would be a viable option.  

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Nepal.  By its written decision dated 30 July 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 20 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In the accompanying affirmation, she stated, essentially, that the Board failed to properly consider country of origin information (“COI”)  by cherry picking its preference, that she did not have legal and language assistance in understanding the decisions or in preparation of the appeal, that the Board did not address the issues properly and made its assessment on a template basis, that the Director and the Board erred by not taking into account all relevant factors, that the Director failed to consider that her lower frequency of harm solely resulted from her fleeing the country, that the Board did not provide objective COI in support of its determination, and that the finding of internal relocation being viable was unreasonable.  

8.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the hearing held on 7 January 2025.  On 24 January 2025, the Judge issued her decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [10] to [18] of the Form CALL-1 as follows:

“ 10. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: 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.

11. The applicant’s Form 86 did not contain any grounds for seeking relief. In her 12-page supporting affirmation of the same date, she put forth a number of grounds to advance her intended challenge, which can be summarized as follows. That:

a. the Board’s Decision was procedurally unfair;

b. there was a lack of language assistance; and

c. the Board’s finding was not supported by an objective COI.

12. In her affirmation, the applicant made numerous complaints in relation to the issue of lack of interpretation including a complaint that the Board’s Decision had not been translated to her. In light of the applicant’s complaints, I have instructed the interpreter to interpret the Board’s Decision to the applicant before hearing her application. The interpretation took more than an hour. At the hearing, the applicant confirmed with this court that the Board’s Decision had been interpreted to her. The court then asked the applicant to elaborate on the grounds contained in her affirmation and specify the errors the Board had made. However, the applicant only repeatedly said that she had borrowed money and she had no money to pay. She also said that the outstanding loan was not fabricated but true. Apart from these, the applicant had nothing else to say to this court.

13. Notwithstanding the length of the affirmation, the proposed grounds of the intended change are vague and generalized. They are bare assertions, which are plainly evidenced by the applicant’s inability to identify the errors of the Board even after the court had allowed time for the interpretation of the Board’s Decision. I also do not think that her numerous complaints about the interpretation issue are valid. The Court of Appeal in Karamjit Singh [2018] HKCA 460 also similary faced with almost the same complaint about interpretation. It is convenient to paraphrase the relevant paragraph in that decision. In this case (as in Karamjit Singh ) , all the court documents (including the form 86, the supporting affirmation)  were all written in English.

“This indicates either that the applicant is familiar with the English language, or that [s]he has access to, or is able to seek, such language assistance as [s]he may need. The supporting affirmation [s]he made contained an interpretation clause, which means that [s]he is able to seek language assistance to interpret the contents for [her] benefits.” see Karamjit Singh [2018] HKCA 460 at [16].

14. Furthermore, the applicant has in fact exhibited the Board’s Decision, the Notice of Decision, the “Non-refoulement Claim Form” and the Record of Screening Interview” , which are all in English. The arrangement of the interpretation of the Board’s Decision was only done out of the consideration for fairness.

15. As the Court of Appeal has stated in Ravinder Singh, [2024] HKCA 395 at [11] that an applicant’s complaint of procedural unfairness due to the lack language assistance will have no merits.

“.… [an applicant] cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires … The Court of Appeal in Karamjit Singh , CACV 78/2018 agreed with the Court of First Instance that it could not have been the intention of the authority that the principle of high standard of fairness would include provision of interpretation service at any time an applicant desires or requires”.

16. The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. In the Board’s Decision, the adjudicator had in fact accepted the applicant’s evidence in relation to the outstanding loan. However it was the Board’s finding that the applicant did not face a real risk of harm if she returned to her village. The findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

17. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s fear was unfounded and that the applicant failed to discharge her burden of proving the asserted fears and risks.

   18.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676.”

Appeal to this Court

9.  On 7 February 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge failed to acknowledge and consider her lack of legal and language assistance, that she suffers from significant stress from constant fear resulting in a heart attack and hospitalisation, that the stress and fear impacted her mental health, and that the fact that there are no other avenues to seek an appeal against a decision based on credibility is procedurally unfair.  

10.  As the applicant did not lodge any skeleton argument, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the risk of harm did not reach the requisite level of severity, reasonable state protection would be available to the applicant, and internal relocation to areas, such as Kathmandu or Dharan, would be a viable option.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.   The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.   

13.  As to the complaint about the lack of legal and language assistance, it has been repeatedly stated by the Court of Appeal that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the court documents filed in this appeal and in the court below were in English.  It is thus clear that either the applicant was herself conversant with the English language or she had access to language assistance of her own if she found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of her case in the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of her present claim. Thus, we do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

14.  Although we empathise with the Applicant’s claims of stress in this process, these matters are not relevant to her present non-refoulement claim.

15.  The applicant has therefore not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.  The applicant’s appeal is accordingly dismissed.