THAM NARAYAN IWA LIMBU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 107/2019

[2019] HKCA 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 107 OF 2019

(ON APPEAL FROM HCAL NO 245 OF 2018)

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J U D G M E N T

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Hon Pang JA (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”) dated 28 February 2019.  By that decision, the Judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 7 August 2009 and was arrested on the same day.  On 11 August 2009, he lodged a torture claim by way of written representation, subsequently taken as a non-refoulement claim under the unified screening mechanism.  The basis of his claim is that if he were to return to Nepal, he would be harmed or killed by people of the Limbuwan Party (“the LP”), as he refused to join them.

The Director’s decision

3.  By a Notice of Decision dated 25 March 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 3 risk[2] and persecution risk[3].

4.  In view of the past absence or low intensity and frequency of ill-treatment of the people by the LP, the Director decided that there was a low risk of harm to the applicant.  The availability of state protection and internal relocation alternatives, the Director decided, further lowered or negated the level of any of the above-stated risks. 

5.  By a Notice of Further Decision dated22 May 2017 the Director rejected the applicant’s claim on BOR 2 risk[4]. On the existing material which the applicant did not supplement upon invitation the Director considered that the applicant had failed to establish any personal and real risk to his absolute and non-derogable rights under the Hong Kong Bill of Rights, if he were to return to his home country.

The Board’s decision

6.  The applicant appealed against the Director’s decisions.  He attended the appeal hearing on 21 November 2016.  The Board decided that the applicant had failed to substantiate his claim.

7.  The applicant, the Board found, was never physically harmed, plus there was no evidence that the LP was still looking for him after a lapse of 7 years.  The Board also found that state protection was available in Nepal and the applicant’s appeal was rejected on 1 February 2018.

The intended judicial review

8.  On 15 February 2018 the applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review against the Board’s decision.

The Judge’s decision

9.  In the absence of any specified error or argument by the applicant that the Board’s decision was unfair or unreasonable, the Judge found that there was no basis or merit in the applicant’s intended challenge.  The Judge considered that there was no error of law or procedural unfairness in both the decisions of the Director and the Board.

10.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended judicial review and refused the leave application on 28 February 2019.

Grounds of appeal

11.  The applicant filed a Notice of Appeal against the Judge’s decision on 5 March 2019.  His stated grounds of appeal were as follows:

(1)   He did not understand English.

(2)   He was put on the spot on the day of the leave hearing. He was not made aware of the nature of the hearing nor was he able to prepare for it.

(3)   He disagreed to his case being dismissed as he was not given a fair chance.

12.  In his original leave application, no specific grounds were stated in his Form 86 or affirmation.

Legal principles

13.  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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information (“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.

14.  An appeal against the refusal of leave by a Judge of the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  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.

Merits

17.  The applicant submitted that the Judge had erred in his decision without providing any particulars.

18.  The applicant further submitted that he did not understand English and was not given a fair chance.  However, a notice was issued to the applicant on 18 December 2018 regarding the hearing before the Judge on 11 January 2019.  An interpreter was arranged for him at that hearing.  When asked if he had anything to say about what was wrong with the previous decisions, the applicant said nothing.  There is therefore no basis for the applicant to complain that he was not aware of the nature of the hearing, or that he was not given sufficient time to prepare his grounds, or that he was not given a fair chance.

19.  The applicant said he thought he would have legal aid but was not given legal aid.  But the court has received no notification from the Director of Legal Aid that the applicant had made any application for legal aid.  Obviously he had not applied for legal aid.

20.  Before us, the applicant said he had nothing to add.

21.  In sum, the applicant has failed to demonstrate that the Judge had made any error of law, or that he had failed to take account of relevant matters already placed before the court, or that he was otherwise plainly wrong.

Disposition

22.  As there is no merit in the appeal nor any prospect of success in the intended application for judicial review, we dismiss the applicant’s appeal.