RIZAL RENU v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 390/2022

[2023] HKCA 219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2022

(ON APPEAL FROM HCAL 154/2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 16 September 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2713).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 July 2018 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 1 February 2023.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of India, but she has resided (without citizenship) in Nepal since her marriage with a Nepali man in 1999.  She entered Hong Kong on 26 February 2014 as a foreign domestic helper.  Her employment contract was however prematurely terminated on 30 April 2014.  She did not depart within the limitation of stay and had overstayed since 15 May 2014.  On 6 December 2017, she was arrested by the police for, inter alia, breach of condition of stay in Hong Kong.  On 13 February 2018, she raised a non-refoulement claim on the basis that if she returned to Nepal, she would be harmed or even killed by her late husband’s distant relative, one Vinod Gurung (“Vinod”).  She also contends that she could not be refouled to India because she did not have any family or friends there. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] to [4] of the Leave Decision.

5.  By a Notice of Decision dated 12 July 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  The decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that the applicant’s non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board.  The applicant attended the hearing on 20 November 2018.  Having assessed and considered the totality of the evidence, the Board considered that there is no or no reliable evidence to support the applicant’s alleged fear of harm from Vinod.  Alternatively, after considering the applicant’s case and the relevant Country of Origin information, the Board considered that even if such risk of harm existed, state protection and suitable options of internal relocation in both Nepal and India would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate her claim on all applicable grounds and dismissed her appeal.

The Leave Decision

7.  On 16 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. In her Form 86 and her supporting affidavit, the applicant did not set out any ground of review.  The applicant appeared at an oral hearing before the Deputy Judge, during which she did not raise any ground for seeking relief.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [11] to [14] of the Leave Decision:

“11. 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 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.

12. In the Applicant’s case, the fact is that it has been correctly 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 either Nepal or India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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.

14.  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.”

The Appeal

9.  On 26 September 2022, the applicant filed a Notice of Appeal in support of her appeal against the Leave Decision.  In her Notice of Appeal, she stated, in gist, that she would “face hardship” if refouled, and that the Board had erroneously relied on “source of news which is not official recognised or is simply hearsay”.

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 15 November 2022, the applicant lodged her written submissions on 12 December 2022.  In those submissions, the applicant again claimed her life would be at risk in her “country”, and contended that the Board failed to take into account relevant considerations and did not follow “the high standard fairness”.

11.  We heard the appeal on 1 February 2023.  A Hindi interpreter was present to provide language assistance.  During the hearing, the applicant confirmed she had nothing to add to her written materials.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  At the outset, all of the applicant’s allegations are vague and bare contentions.  Although she disagreed with the Leave Decision, nowhere in her Notice of Appeal or written submissions did the applicant identify with specific particulars as to how the Deputy Judge had erred in reaching the Leave Decision.  Accordingly, her submissions are plainly not proper grounds of appeal.  On this basis alone, her appeal must fail.

15.  Further, general assertions of the applicant’s fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. 

16.  The applicant has failed to particularise or identify the “source of news” which is said to have been erroneously relied upon by the Board in reaching its Decision, nor did she specify what “relevant considerations” the Board had allegedly failed to consider, as well as in what way it had failed to follow high standards of fairness.

17.  In any event, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

18.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  We see no basis to interfere with the Leave Decision.

19.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.