DOL BAHADUR ADHIKARI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 323/2019

[2019] HKCA 1296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 323 OF 2019

(ON APPEAL FROM HCAL NO. 2521 OF 2018)

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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)  The appeal

1. This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (‘Judge’) given on 4 July 2019 in which he refused to grant leave to the applicant to apply for judicial review.  

2)  Factual background

2.1. The applicant is a national of Nepal.  He arrived in Hong Kong on 3 July 2010 and was arrested on the same day.  He lodged a non-refoulement claim on 27 January 2014.

2.2. The basis of the applicant’s claim is that he would be harmed or killed by some local people from Young Communist League (‘YCL’).  

2.3. The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decision

3.1. The Director decided against the applicant’s torture claim on 11 October 2017. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against persecution (‘the Director’s Decision’).

3.2. On 5 July 2010 he lodged a torture claim which was rejected on 15 December 2010. He petitioned against the decision but was dismissed on 25 January 2011.

4)  The Board’s Decision

4.1. The applicant appealed against the Director’s Decision to the Board. After a re-hearing de novo held on 16 August 2018, where the Board considered all four areas for non-refoulement (BOR 2, BOR 3, torture risk and persecution risk), the Board dismissed the applicant’s appeal on 15 October 2018 (‘the Board’s Decision’).

4.2. The Board found that the applicant had a duty to substantiate his case pursuant to Section 37ZA(1) of the Immigration Ordinance (Cap. 115).  The Board found that more than 7 years have passed since the applicant’s alleged acts of violence.  The applicant did not have a significant profile in his political party alleged.  He provided an inconsistent account of events.  The Board found that there was only a remote or speculative risk and not a real risk the applicant will face proscribed harm from the YCL or Maoist, if he is refouled back to Nepal. 

5)  Decision of the Judge

5. The Judge held that when the applicant was before him, he confirmed that he had had a fair hearing before the Board.  He understood the Board Decision as a friend had explained it to him.  The applicant’s complaint that the Director did not research into YCL (the organization allegedly threatening the applicant) and how it was related to Maoists was unfounded because these organizations’ backgrounds were irrelevant to the applicant’s case.  It was his own personal opinion that the authorities cherry picked country of origin information without any evidential backing.  There was no reasonable prospect of success in the applicant’s claim.  

6)  Grounds of appeal and written submissions

6. The applicant in the Notice of Appeal and written submissions made a variety of complaints.  They include that the Board was wrong in saying that the applicant had no evidential backing to support his case; that the Board partly accepted and partly rejected his story; that country of origin information was not researched thoroughly; that insufficient language assistance was provided to him in that the sealed order and call 1 form were posted to him without translation.  

7)  Our view

7.1. We are of the view that the applicant’s appeal is without merits. An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. We cannot see the applicant’s variety of complaints have any real complaint against the decision of the Judge.

7.2. We are of the view that the variety of complaints that the applicant has made in his Notice of Appeal and written submissions are nothing but bare allegations with no evidential backing.  More so, it is important to note that high standards of fairness does not mean that the applicant can sit back and simply let the primary assessors to disprove his own case.  The burden of proof remains with the applicant to show the primary assessors why his case is credible: AM v Director of Immigration [2014] 1 HKC 416.

7.3. As for the complaint about how the Board chose to accept some and reject some of the applicant’s alleged case theory, we are of the view that the Board as the primary assessor of the matter is entitled to do as such.  This is an inevitable process in its assessment of the applicant’s credibility on the evidence.  There is no merit in this complaint.

7.4. Regarding the lack of translation, it is not the applicant’s complaint that he did not understand the Judge’s decision. In fact the applicant was able to formulate his grounds of appeal after reading the Judge’s decision. In any event, the lack of translation of the sealed order and the call 1 form can have no bearing on the correctness of the Judge’s decision.

7.5. Accordingly, the appeal is dismissed.