RE DHIMAL KAMALA

CACV 196/2018

[2018] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 196 OF 2018

(ON APPEAL FROM HCAL 539/2017)

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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 Woodcock given on 24 May 2018 refusing leave 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 dated 26 July 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 20 April 2016 and 14 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong on 30 June 2010 to work as a domestic helper with permission to remain until 1 April 2012.  She overstayed and surrendered to the Immigration Department on 30 July 2014.  She lodged a non-refoulement claim on the same day. 

3.  The applicant’s claim was based on the risk of harm from the Maoists and the Nepalese government.  According to the applicant, the Maoists asked her to join their party when she was around 17 years old but she refused.  The Maoists made verbal threats to her, although they did not attack her.  The applicant was also afraid that the Nepalese government would consider her a Maoist. Additionally, she is concerned that she will be harassed or mistreated because she is now a Christian, and Nepal is a Hindu majority country.

4.  By a Notice of Decision dated 20 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 14 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 June 2017, the Board dismissed the appeal on 26 July 2017 (“Board’s Decision”).

7.  At [15] and [24] of the Board’s Decision, the Board held that “there are no substantial grounds for believing that the applicant would be subject to severe pain and suffering on her return to Nepal, whether mental or physical”.  The Board was also satisfied at [16] that state protection was available for the applicant and at [17] that internal relocation was viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 22 August 2017.  The Form 86 contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 22 August 2017, the applicant advanced the following grounds for judicial review:

(1) lack of legal representation before the Board/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) wrongful exercise of case management/error of law.

10.  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 to apply for judicial review. The judge gave the following reasons at paragraphs 9 to 18 of the CALL-1 form:

“9. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in her Form 86. However, there are no grounds against the Director in her affirmation.

10. In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes she says the Director made in her appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant. The supporting affirmation lists the following as grounds for seeking leave:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) wrongful exercise of case management/error of law.

12. The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her with the further determination by the Director of the BOR 2 risk. The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed her claim the applicant received no further free legal advice or assistance. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

13. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case by case basis.

14. The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair. The applicant said herself at the hearing that she did not approach the duty lawyer scheme and ask for help with her appeal. She dealt with the appeal herself. She can hardly complain when she did not ask for help. There is no merit in this ground.

15. In the applicant’s second ground, she complains the duty lawyer service is saving costs and refused to translate her ‘NCF’ despite her request for it. Without it she cannot confirm whether or not the basis of her claim written in English is accurate which is why she asked for a translation. During the process, interviews and appeal, there does not seem to have been any reason to suspect her claim was not translated properly. If there had been issues, the applicant would have been able to particularise details here in her affirmation. Moreover, the applicant was able to make this application and draft this affirmation in English. I find no merit in this ground.

16. The applicant’s last ground is a complaint that the adjudicator failed to consider she had a well-founded fear of being persecuted for her religion. The adjudicator correctly set out the test for considering a persecution risk. In a decision the adjudicator considered the applicant was baptised in 2007 but did not encounter any discrimination when she visited Nepal in 2008, her fears were speculation and not well founded fears based on evidence and lastly, not based on any personal experience. For those reasons, the adjudicator found she was not at risk of persecution. I was satisfied the adjudicator did not fail to consider whether or not the applicant was at risk of persecution due to being a Christian in Nepal. There is no merit to this ground.

17. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the decision of the Director.

18. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 31 May 2018 the applicant advanced various grounds of appeal, which can be summarised as follows:

(1) The judge erred in holding that the Director ought not be named as a respondent in the Form 86.  “There are indeed grounds against the Director, which is the fact that [the applicant] was not provided with legal representation…for the assessment of BOR2 risk”.  Further, the applicant “could not have applied for judicial review against the Director’s decision before applying to TCAB”.

(2) The lack of legal representation in the BOR2 risk claim before the Director means that the Further Decision did not meet the high standard of fairness.

12.  In her skeleton submission dated 21 August 2018 but received on 22 August 2018, the applicant repeated the grounds in the Notice of Appeal.  She submitted that because she never lodged an appeal for BOR2 risk to the Board she had to name the Director as a respondent.

13.  The applicant agreed by a letter of 12 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 20 September 2018.

General principles

14.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at [14]:

“14. …

(1) 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

15.  At [5] of the Board’s Decision it was said that “As the [Further Decision on BOR2 risk] was issued less than 14 days before the date of the scheduled hearing [of the Board] on 22 June 2017, and on the applicant’s consent, I proceeded with considering and hearing the petition against this decision together with the Appeal”.  In these circumstances, the Further Decision had clearly been overtaken by the Board’s Decision and the first ground has no merit.

16.  For the second ground, which is based on the lack of legal representation, 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).  The applicant failed to show how the lack of legal representation caused any prejudice.  Indeed, it appears that she did not in fact seek representation from the Duty Lawyer Service for the BOR2 claim (see [14] of the CALL-1 form).  This ground has no merit either.

17.  There is no merit in the appeal and we dismiss the appeal accordingly.