RE ROKA THIR BAHADUR

CACV 530/2020

[2021] HKCA 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 530 OF 2020

(ON APPEAL FROM HCAL NO 773 of 2018)

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J U D G M E N T

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Hon Mimmie Chan J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 20 January 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”)  dated 20 October 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 12 April 2018 dismissing his appeal against the Director’s decision.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Nepal.  He entered Hong Kong illegally via Shenzhen by boat on 31 December 2015.  He was arrested by the police two days after his arrival on 2 January 2016.

4.  The applicant lodged a claim for non-refoulement protection on 6 January 2016.

5.  The applicant’s claim is based on his fear of being tortured or killed by supporters of Pushpa Kamal Dahal (“PKD”)  (also called Prachanda)  if he was to be returned to Nepal.  Initially the applicant was a supporter of the Unified Communist Party of Nepal (Maoist)  (UCPN(M)”).  Two rival leaders within the UCPN(M)  started to fight amongst themselves, namely PKD and Bahuram Bhattarai (“BB”).  In the conflict, the applicant chose to support the side of BB. His case was set out in detail in [6] of the Director’s decision dated 20 October 2017 and summarised by the Judge in [1] – [4] of the Form CALL-1[1].

6.  The applicant’s case, in brief, is as follows.  The applicant was born and raised in VDC Patlekhet, District Myagdi, Dhaulagiri, Nepal.  He was a supporter of the UCPN(M)  until PKD and BB started fighting amongst themselves in about 2013.  From then on he chose to support the side of BB.  At that time, frequent conflicts between supporters of PKD and BB occurred in the applicant’s home village.  He felt unsafe as he felt that supporters of PKD were constantly looking for him in Nepal. In about 2015, he moved to Kathmandu and stayed there for about 9 months.  In about December 2015 the applicant decided to leave Nepal for China.  He later entered Hong Kong illegally by boat via Shenzhen.

7.  By his decision dated 20 October 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds.  The applicant filed his appeal against the decision of the Director on 3 November 2017. 

8.  By its decision dated 12 April 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that the facts given by the applicant were woefully vague and were unsatisfactory for evidential weight to be attached.  In particular, the applicant was unable to recall specific details of the incidents of his alleged ill-treatment.  He was unable to produce any evidence whatsoever of his alleged injuries, nor could he recall details of the medical treatments he received.  The Board took into consideration the fact that the applicant had remained safe for a period of 9 months without any hostile encounters after his relocation to Kathmandu.  After his illegal entry into Hong Kong, the applicant did not seek assistance from the police or any authorities until he was arrested 2 days after his arrival.  The applicant claimed that he had no knowledge that his boat trip from Shenzhen to Hong Kong was illegal, even though he gave evidence that he knew the boat travelled under complete darkness without any navigation lights. Further, the applicant used a forged HKID card while he was on immigration recognizance.  The applicant also took up illegal employment in Hong Kong, at a restaurant transporting cartons of fish.  The Board found that the applicant’s evidence was unreliable and not credible.  Further, the Board found that internal relocation alternatives were reasonably available to the applicant because he had successfully evaded any hostile encounters after relocating to Kathmandu.  The Board went on to consider the applicant’s appeal on all applicable grounds, and dismissed it for the reasons given.

Application for leave to judicial review

9.  On 3 May 2018, the applicant filed Form 86 to apply for leave to judicially review both the Director’s decision and the Board’s decision.  As summarised by the Judge in [9] of the Form CALL-1, the applicant gave the following grounds in support of his application:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case that led to an unfair outcome of rejecting his con-refoulement claim;

(2)  that the Director failed to take into account the fact that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to the Applicant by cause of the state and its public officials’ failure to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Director failed to consider or give sufficient weight to the evidence of the relevant COI which supported the applicant’s aversions that the police in Nepal would not be able to protect;

(4)  that the Director only relied on those COI which suited his pre-conceived conclusion which show a clean case of unfair attitude towards the applicant which would render his decision void;

(5)  that the Director failed to consider that the corruption and incompetency of the administration in Nepal is still a very serious problem as supported by the reports of various human rights organization as stated testament to the applicant’s assertions;

(6)  that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(7)  that the adjudicator failed to make sufficient enquiry before finalizing the decision; and

(8)  that the adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

The Judge’s decision

10.  After hearing the applicant on 20 January 2020, the Judge refused leave for the reasons set out in [10] – [15] of the Form CALL-1:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case, or in what way was state acquiescence relevant to his claim, or how the Director or the adjudicator had erred in their decisions, or in what way did the Director failed to apply high standards of fairness in assessing his claim, or how did he fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunity to provide relevant evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, 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 Board rejected his claim essentially on its adverse finding on his credibility for the reasons set out in paragraphs 4 – 19 of its decision, and while I accept that the Board may be unfairly critical of his failure to raise his non-refoulement claim until two days after his arrival in Hong Kong, but with the benefit of hearing him in oral evidence during his appeal hearing, it was in my view entitled to find his evidence of the events occurred in Nepal prior to his departure too vague and inconsistent to be accepted as credible.

13. The fact is that it has been 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 him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. 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.

15.    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 his leave application.”

Appeal to Court of Appeal

11.  With an extension of time granted by the Judge[6], the applicant filed a Notice of Appeal on 29 September 2020 to appeal  against the refusal of leave for judicial review on the following grounds:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

2. I submit that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalising the determination. The Adjudicator stated that I Had failed to advice any credible evidence to prove material elements of his claim.

4. It is to be noted that I am a torture-claimant who has no or limited options at my disposal to bring my evidence before the tribunal, and that to when I was in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to me to arrange relevant evidence to my non-refoulement claim as well as my appeal.

5. Surprisingly, the director in my Decision while referring to relevant COI’s kept including meaning which suited my pre-conceived conclusion. This was a clean case of unfair attitude shown by the Director which in itself is enough to render my Decision void.”

Skeleton Submissions

12.  On 20 May 2021, the applicant filed his written submissions.  His arguments can be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility; and

(3)  section 37ZT(2)  of the Immigration Ordinance, which we note is irrelevant as there is no issue of late filing of appeal to the Board in this case.  We will therefore not deal with this ground.

13.  We heard the appeal on 20 July 2021.  At the hearing, the applicant had nothing further to say. 

Legal Principles

14.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim)  the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise)  of harm, the availability (or otherwise)  of state protection, and the viability (or otherwise)  of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

16.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[7] and we will not repeat them here. 

17.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[8]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[9] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

Discussion

18.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

19.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

20.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

21.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.