RE SIWA PARIYAR HIMA

CACV 78/2021

[2021] HKCA 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2021

(ON APPEAL FROM HCAL 354 OF 2019)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Ms SIWA PARYAR Hima, against the order made by Deputy High Court Judge P Li (“Judge”) on 19 February 2021 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 14 January 2019 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 31 May 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 41, is a fear of being harmed or even killed by her estranged husband (“Pariyar”) because of her family’s failure to give Pariyar’s family a dowry.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraphs 49 to 80 of the Board’s Decision and in gist in [2] to [10] of the Judge’s Decision embodied in the Form CALL-1 dated 19 February 2021, [2021] HKCFI 384 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant and Pariyar entered into an arranged marriage in 2006, after which the applicant moved to live with Pariyar’s family in Baelbari.

(2)  There was no discussion regarding dowry between the 2 families when the marriage was arranged.

(3)  However, it was the tradition in Nepal for the bride’s family to pay a dowry to the bridegroom’s side.  And, in 2007, Pariyar’s family started to demand a dowry from the applicant’s family.  The latter was too poor to afford one. 

(4)  Pariyar’s family persisted in their demand for a dowry.  The relationship between Pariyar and the applicant turned sour. Pariyar assaulted the applicant weekly from 2007 to 2012.

(5)  In the meantime, the applicant gave birth to a son in 2008.

(6)  One night in 2012, Pariyar beat the applicant up again after another quarrel about the payment of a dowry.  The applicant was bruised all over her body and also sustained a nosebleed.

(7)  The applicant reported Pariyar to the police the next day.  That was the only time she approached the police for help.  Instead of laying charges against Pariyar, the police just told Pariyar and his family not to assault the applicant anymore and forced them to compromise the case.

(8)  Pariyar and his family were however not deterred.  Although the physical abuse stopped, they put the applicant in a separate room in the house and Pariyar verbally threatened and scolded the applicant incessantly, thereby causing her much mental stress.  He even stopped supporting her living.

(9)  Then, in 2013, a friend of the applicant overheard Pariyar talking about sending someone to kill the applicant.

(10)  The applicant sought support from her family and villagers of her hometown, Karabari Village.  The head of village just issued a notice telling her to live harmoniously with Pariyar.  The village head also advised her to leave the village.  On receiving the notice, Pariyar beat the applicant up again.  The applicant did not report this attack to the police which she believed to be corrupt.  Nor did she approach her village head again.

(11)  In 2014, the applicant left Pariyar.  She stayed with a relative in Kathmandu for about a week before finally leaving Nepal for Hong Kong on 18 February 2014.

Entry into Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong by air on 18 February 2014. She overstayed her visitor’s visa since 26 February 2014.  She surrendered to the Immigration Department in October 2015 and raised the NRF Claim by written representation dated 29 April 2016.  

Director’s Decision

6.  In processing the NRF Claim, the Director took into account the information provided by the applicant in her Non-refoulement Claim Form dated 16 April 2018 and at the screening interview on 21 May 2018.  The applicant then had legal advice and representation from the Duty Lawyer Service (“DLS”).

7.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the ill-treatment inflicted upon the applicant, whether physical or mental, did not attain a minimum level of severity, nor was it as imminent or substantial as the applicant claimed, having regard to the intensity and frequency of the past ill-treatment that the applicant claimed to have experienced, the mode of attacks, the nature of the threats, the level of injuries sustained and the absence of any need to seek medical treatment.

(2)  Second, the availability of state protection would further lower or even negate the risk (if any).  There is objective country of origin information (COI) showing that the Nepali government has taken steps to fight domestic violence towards women, e.g., the criminalisation of the practice regarding dowry and associated brutality.  Further, on-going reforms have been initiated to improve the standard and performance of the Nepali police.  There are also other avenues to seek justice in Nepal.

(3)  Third, reasonable internal relocation alternatives are available to further negate or reduce the perceived risk, which was localised.  It is not unduly harsh for an able-bodied adult like the applicant to start afresh in say Birgunj or Biratnagar.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.

9.  The Board conducted a rehearing of the NRF Claim on 27 November 2018, at which the applicant testified before, and answered questions by, the Board through a Nepali/English interpreter.

10.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection, noting that the NRF Claim is founded upon the applicant’s bare assertions unsupported by any objective proof.  In any event, the Board considered the risk of future harm to be small.  The past conduct of both the applicant and Pariyar deposed to by the former does not really suggest severe assaults by Pariyar or serious injuries to the applicant.  Further, the applicant has been out of the country since February 2014.  There is nothing to suggest that Pariyar or his family would come to know of her return, and even if they did, that they would try to find her, and even if they did, they would seek to harm or kill her.

11.  The Board also reached the same conclusions as the Director regarding the availability of state protection and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 354/2019 on 8 February 2019, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision[5] on the following grounds:

(1)  that she had no legal or language assistance since the Director’s Decision;

(2)  that as a litigant, she should be entitled to understand the determination of her case;

(3)  that she cannot understand English and no one explained to her the contents of the hearing bundles used before the Board, especially the documents that did not come from her;

(4)  that she was asked at the hearing to confirm the contents of bundle that she did not fully understand;

(5)  that the Adjudicator was making findings of his own and, in order to ensure fairness, should offer her the opportunity to understand the contents of the documents to be used as references in her case;

(6)  that the Adjudicator did not determine her case “on a case-by-case basis” taking into account her personal circumstances, e.g., that the Adjudicator erred in finding that she would be safe in Kathmandu based on the fact that Pariyar had not come to look for her during her short one week stay there;

(7)  that without understanding the Board’s Decision, she has been deprived of the right to make an adequate application for leave for judicial review; and

(8)  that she reserves the right to request the Board’s Decision to be read back to her in Nepali through a qualified interpreter.

13.  Upon the applicant’s failure to attend the scheduled hearing[6], the Judge determined her application on the written materials before him.  His reasons can be found in [25] to [29] of the Form CALL-1:

“25. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

26. I understand that the appeal bundle consisted of her NCF and documents submitted by her. Besides, the most important document was the decision of the Director. Under normal circumstances, that decision was translated to her by the DLS. Most of the other documents in the appeal bundle were translated to her at the time of compilation. In any event, she should seek assistance from others before the hearing.

27. I notice that both the Form 86 and the affirmation for the leave application were in English. They are typewritten and well structured. In my view, the applicant was able to find language assistance. I do not accept that she could not understand the appeal bundle.

28. During the oral hearing in the TCAB, the applicant was assisted by a Nepali interpreter. According to the decision of the TCAB, she did not raise any complaint. She adopted all information contained in the appeal bundle.

29. In my judgment, there is no error of law or procedure.  The decisions of the TCAB and Director are reasonable.”

Appeal to Court of Appeal - grounds of appeal and submission

14.  The applicant’s complaints in the notice of appeal filed herein on 26 February 2021 and the written submission dated 13 July 2021 can be summarised as follows:

    (1)  Ground 1 - It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling her case as a litigant in person.

    (2)  Ground 2 - Notwithstanding her inability to read or write English, after the Director’s Decision, she has not been provided with any language or legal assistance, without which she cannot fully understand the decisions that have been made against her, formulate proper grounds for judicial review or grounds of appeal or effectively appear at hearings, much to her disadvantage.  The Judge was unfair in failing to acknowledge or give weight to her language incapability or consider the significance and extent of unfairness to her arising from her lack of legal and language assistance or in dealing with her proposed grounds for judicial review concerning her lack of legal representation and language assistance.  It is not true that she could understand the Board’s Decision while it was explained to her by her friend.  She was not able to understand the “legal jargon” without the help of any legal representative.  What she understood is that that her appeal had been dismissed but not the contents of the Board’s Decision.  The lack of language assistance in enabling the claimant to understand her claim to the fullest is discriminatory and should be deemed unlawful.  The applicant requested for 14 days to make further submission after having all the documents read back to her in her own language before the determination of this appeal. 

   (3)  Ground 3 - It is unfair that the assessment of the applicant’s credibility was left entirely to the Board in this case (as the Director made no such assessment), which means that a case becomes unappealable once the Board determines it to be incredible. The lack of other avenues for a non-refoulement claimant to appeal against a decision made purely on an assessment of credibility is procedurally unfair.

15.  The applicant appeared in person at the hearing of the appeal on 10 August 2021.  She was provided with a Nepali/English interpreter.  She had nothing to add to her notice of appeal or written submission.

Discussion

Court of First Instance’s role in judicial review in non-refoulement cases

16.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Ground 1

18.  This ground is too vague to merit any or any serious consideration.  The applicant has not condescended to any particulars as to how she or her case has not been treated with caution or diligence.

Ground 2

19.  It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

20.  In this case, the applicant did already have the benefit of legal representation from the DLS in presenting her case to the Director.  Other than a general complaint, she has not pointed out in what ways she was prejudiced before the Board or the Judge due to her being unrepresented.  Given the purely factual nature of the NRF Claim and the decisions made thereon, we can see none.

21.  As for interpretation services, they are provided at the hearings before the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of her case.

22.  As noted by the Judge:

   (1)  Other than the NCF and other documents submitted by the applicant herself (which would have been translated for her confirmation at the time of compilation), the most important document in the appeal bundle used at the hearing before the Board was the Director’s Decision.  It would have been translated to the applicant by the DLS under normal circumstances.

   (2)  During the oral hearing before the Board, the applicant was assisted by a Nepali/English interpreter, through whom she could have raised any complaint about her supposed lack of a full understanding of the documents due to her lack of English capability.  Instead, she saw fit to just adopt all the information contained in the appeal bundle.

   (3)  Both the Form 86 and the supporting affirmation are in English.  They are typewritten and well structured, which suggests that the applicant could and did find language assistance.

23.  The Judge’s said last observation also applies to the notice of appeal and written submission before us.

Ground 3

24.  This does not even get off the ground.  As summarised in [10] above, despite noting that the NRF Claim is founded upon the applicant’s bare assertions unsupported by any objective proof, the Board did not dismiss the applicant’s appeal on an assessment of her credibility.  To the contrary, the Board’s Decision was based on the proper inferences that should be drawn from the applicant’s account of events.

25.  In the premises, the applicant did not in the notice of appeal or written submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

26.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.