KHATRI BHANU BHAKTA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 155/2023, [2023] HKCA 823

On Appeal From [2023] HKCFI 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 155 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 567 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 28 February 2023 refusing to grant leave for the applicant to apply for judicial review.[1] The intended judicial review was sought against the decision of the Torture Claims Appeal Board (“Board”) dated 4 January 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 18 July 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Nepal, born in 1982. He entered Hong Kong as a visitor on 10 January 2015 but did not depart and had overstayed since 18 January 2015. He surrendered to the Immigration Department on 30 March 2016, and lodged a torture claim by written representation on 23 August 2016. His claim was based on the fear that, if returned to Nepal, he would be harmed by his aunt for refusing to join the Maoist Party and by two men for causing the death of their fathers who were district commanders of the Maoists. The details of his claim are set out in paragraphs 5 to 34 of the Board’s decision dated 4 January 2019.

3.  In March 2018 the applicant was arrested for taking employment while being subject to a removal order. He was subsequently convicted and sentenced to 15 months’ imprisonment.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, torture risk,[2] BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] By notice of decision dated 18 July 2018, the Director rejected the applicant’s claim for non-refoulement protection.

5.  The applicant appealed to the Board against the decision of the Director. The Board held a hearing on 8 November 2018, at which the applicant gave oral testimony. The Board noted that the applicant gave most of his evidence in a direct and sincere manner but that his evidence about some of the key parts of his claims was inconsistent in detail over time in a number of important aspects. Nevertheless, the Board considered that the applicant was speaking from his recollection of personal experiences, and in the end concluded that the applicant should be afforded the benefit of the doubt and that key aspects of his claimed account of events should be accepted on this footing as being based on actual events and fact. The Board, however, noted that the applicant’s claim to fear of harm was from private individuals and that there was no evidence of state involvement. The Board did not accept that the police would withhold protection. Thus the Board did not accept there was any risk of torture within the definition of section 37U(1) of the Immigration Ordinance. The Board also found that the applicant did not face any risk of being subjected to the death penalty or being arbitrarily deprived of his life. The Board found that the risk of harm from the families of the deceased men and other related groups in an area outside his home area would be a remote and not real risk. The Board also found that the applicant was not a person of adverse interest to the Maoists, and that internal relocation to a large city such as Kathmandu or Pokhara was feasible for him. Accordingly, in its written decision issued on 4 January 2019, the Board concluded that the applicant’s claim failed in relation to all applicable grounds and dismissed his appeal and affirmed the Director’s decision.

The Judge’s decisions in the court below

6.  On 27 February 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not specify any ground for judicial review in the Form 86. In the accompanying affirmation, the applicant said that the “information provided” was biased and irrelevant, that the decision-maker had failed to determine the risk and threat he faced upon his return to his country, and that the decision was based on information that was not accurate.

7.  In response to the court’s enquiry, by a letter dated 11 March 2021, the applicant stated that he had no additional document to submit in support of his application for judicial review.

8.  Based on consideration of the documents alone, on 28 February 2023 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [14] – [19] of the Form CALL-1 as follows:

“ 14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and 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.’

17. The Board had assessed his case and did not accept his claimed fear and risks upon his return to his country. Those reasons in paragraph 13 are his opinions without any evidence in support. He has therefore raised no valid reason to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

9.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but took out a summons on 21 March 2023 to seek an extension of time to appeal against the decision of the Judge. In his summons and supporting affirmation, the applicant said that he did not receive the decision on time.

10.  In his written decision dated 13 April 2023,[6] the Judge recorded that the court’s decision was sent by post to the applicant on the date it was issued, and decided to refuse to extend time on the ground there was no realistic prospect of success in the intended appeal.

The renewed application before this Court

11.  By summons filed on 13 April 2023, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the accompanying affirmation, the applicant said that he was late in submitting his appeal because he received the letter late (presumably referring to the court’s letter containing the CALL-1 form).

12.  In his written submissions lodged on 25 April 2023, the applicant accepted full responsibility for the delay in taking steps to appeal and tendered his apology. He stated that his problem in his country is genuine and that his wife and children are also in Hong Kong whose non-refoulement claims are being separately assessed. He asserted that the Board and the Director had failed to take into account relevant considerations, but he did not specify what they were.

13.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

14.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. The applicant had provided no satisfactory explanation for his delay in taking steps to appeal but since the delay (of 7 days) was not lengthy, we shall concentrate on the merits of the intended appeal.

15.  In that connection it is important for the applicant to understand that judicial review is not a further avenue for appeal from the Board. Under the law, the Director and the Board are the decision-makers on the merits of his non-refoulement claim. The court’s jurisdiction in judicial review is supervisory in relation to compliance with law. An appeal to the Court of Appeal is not a further opportunity to re-argue the non-refoulement claim. It is incumbent upon an appellant to identify and establish proper grounds of appeal showing reviewable errors in the judge’s decision.

16.  In the present case, the Board found that on the basis of the applicant’s evidence, there was no sufficient basis for his non-refoulement claim, because of the availability of state protection and internal relocation as a viable option. The Board considered that the risk of harm from the families of the deceased men and related groups, which might conceivably constitute BOR 3 risk and persecution risk, was a localised one, and could be avoided by relocation to a large city within the applicant’s own country. This is a conclusion that the Board, as the primary decision-maker dealing with the merits of the applicant’s claim, was entitled to come to, for the reasons it had given in its decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has failed to establish any such public law ground.

17.  The applicant has also failed to show how the Judge has erred in refusing to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review.

18.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.