SHRESTHA BIMALA v. TORTURE CLAIMS APPEAL BOARD

CACV 537/2020

[2021] HKCA 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2020

(ON APPEAL FROM HCAL NO 895 OF 2018)

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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 appeal from the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 21 September 2020[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 8 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 3 February 2017 rejecting the applicant’s non‑refoulement claim on BOR 2 risk.[2]

Background

2.  The applicant is a national of Nepal.  She entered Hong Kong illegally on 3 July 2010 and was arrested by the police on the same day.  She was then referred to the Immigration Department for investigation.  She raised a torture claim by way of written representation dated 5 July 2010 which was taken as a non‑refoulement claim on 3 March 2014.

3.  The applicant claimed that if she returned to Nepal, she would be harmed or killed by “Maoists”, ie members of the Communist Party of Nepal, for refusing to work for them.  She was subsequently released on recognizance pending the determination of her claim.  The factual background was succinctly summarized by the Judge in [2]‑[4] of his decision contained in the Form CALL‑1.

4.  By a Notice of Decision dated 24 March 2015, the Director assessed the applicant’s claim on the grounds of BOR 3 risk[3], persecution risk[4] and torture risk[5], and determined it against her.

5.  On 9 April 2015 the applicant lodged an appeal to the Board against the Director’s decision.  But as she was outside the 14‑day period required to file her appeal under section 37ZS of the Immigration Ordinance (Cap 115), the Board in its decision dated 27 July 2015 refused the late filing of the applicant’s notice of appeal upon finding that there was no good excuse for her delay.  As to the merits of her appeal, the Board found that even on the applicant’s own case, she was only requested to work for the Maoists for some household duties and that she had not suffered any harm or ill‑treatment under any of the proscribed risks.  The Board did not accept that “a small handful of the now defunct Maoists are still interested in locating the Appellant all over Nepal wherever she may be living, in order to harm or kill her, … even if they have such huge resources and manpower … to look for a needle in a haystack”.  In any event, with state/police protection available as well as reasonable internal relocation for her to move safely to other areas of Nepal without any risk of being located by those Maoists, there were no special circumstances which would make it unjust not to allow the late filing of her appeal.

6.  On 18 January 2017, the Director on his own initiative wrote to the applicant inviting her to submit additional facts which might be relevant to her non‑refoulement claim on BOR 2 risk, but she made no response.  By a Notice of Further Decision dated 3 February 2017, the Director rejected her claim on BOR 2 risk.

7.  The Applicant lodged an appeal to the Board against the Director’s Further Decision, but was again late with her appeal.  On this occasion the Board allowed her an extension of time for her appeal.  She attended an oral hearing before the Board on 31 January 2018 during which she gave evidence and answered questions put to her by the adjudicator.

8.  By the Board’s decision dated 8 May 2018, her appeal was dismissed.  The Board found that the applicant’s case contained bare assertions based on hearsay which were woefully vague and unsupported by evidence.  The Board also found that she was unreliable as a witness and had not been honest with the Board.  Taking its previous decision in 2015 into account, the Board dismissed the applicant’s appeal in relation to BOR 2 risk.

Decision of the court below

9.  On 21 May 2018, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision dated 8 May 2018.  In her supporting affidavit, she put forward the following grounds for her intended challenge (as summarized by the Judge at [12] of Form CALL‑1):

(1)     The adjudicator failed to meet the high standard of procedural fairness required of the tribunal by conducting a fair hearing for the assessment of the applicant’s credibility.

(2)     The adjudicator took account of irrelevant considerations in assessing the applicant’s claim.

(3)     The adjudicator failed to give proper reasons for its decision regarding the applicant’s claim.

(4)     The adjudicator failed to take into consideration all the COI (country of origin information) material available to the Board in assessing the risk to the applicant and whether internal relocation was a viable option.

(5)     The adjudicator had done a shoddy job; he was intentionally rude and inconsiderate, and had failed miserably.

10.  The Judge heard the application on 18 August 2020.  By his decision dated 21 September 2020, the Judge refused to grant leave to apply for judicial review.  His reasons were set out at [12]‑[17] of the Form CALL‑1 as follows:

“ 12. On 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decisions, and in her supporting affidavit of the same date should put forward the following grounds for her intended challenge …

13. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case, or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness or to conduct a fair hearing of her claim, or how the adjudicator failed to take account of irrelevant considerations of COI material in assessing her claim, or how did the adjudicator behave rude or inconsiderate during her appeal hearing. 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 her intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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.

15. In the Applicant’s case, the Board was correct to find on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim that there was no room for engaging the BOR 2 ground, and that even in her present application now before me that the Applicant has not identified what additional facts or grounds she would have put before the Board that could advance her case under BOR 2 risk. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. 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 her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.”

Appeal to this Court

11.  On 5 October 2020, the applicant filed her Notice of Appeal against the Judge’s decision in which she advanced the following grounds:

(1)     The Judge erred in concluding that there was no failure to adhere to a high standard of fairness at common law.  There are minimum standards of procedural fairness required in the decision‑making process and the decision‑maker is under a duty to act fairly.

(2)     The Judge failed to make sufficient inquiry before finalizing the decision.  He concluded that the applicant’s grounds for leave to apply for judicial review of both the decisions of the Director and the Board were very broad and vague without advising and/or inviting the applicant for further elaboration.

12.  In compliance with the Court’s directions, the applicant lodged her written submissions on 31 May 2021.  In those submissions, she contended that:

(1)     There were substantial grounds for believing that she would be in danger of being subjected to torture or death if she were to return to Nepal.

(2)     There was a failure to meet the high standard of procedural fairness required by law. 

(3)     There was no fair oral hearing and there was a lack of legal representation.  The written decision did not provide a comprehensive and considered analysis of the information and issues relevant to her case.

13.  The applicant added that she had been hospitalised for seven months in Queen Elizabeth Hospital and, later, Kowloon Hospital, but there is nothing to suggest that this is in any way relevant to her appeal.

14.  The appeal was originally fixed to be heard on 28 June 2021.  Because the black rainstorm warning was in force for most of that morning, however, it was automatically adjourned to 29 June 2021 by operation of the provisions of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap 62).  At the hearing on 29 June 2021, the applicant did not appear even after 45 minutes from the appointed time. 

15.  At about 2 pm on 28 June 2021, when called by a clerk of the court regarding the adjourned hearing, the applicant apparently claimed through a friend that she was unable to walk and could not come to court on 29 June 2021.  At 5:18 pm on 28 June 2021, the applicant sent by fax to this court 13 pages of documents including copies of her Recognizance and medical records including medical appointment slips.  According to a reference letter issued by Kowloon Hospital dated 24 March 2021, the applicant had suffered scald injury and required wound care but she was able to walk independently at the time of discharge.  The records show that she has been attending general out-patient clinics for treatment.  On 29 June 2021 at 4:35 pm, the applicant further faxed to the court 3 pages consisting of a medical enquiry form completed by a doctor at Queen Elizabeth Hospital dated 22 April 2021 which stated that the applicant could walk unaided after wound heal or could walk with escort.  While we accept, with sympathy, that the applicant had suffered serious scald injury to her left thigh and foot in October 2020 from which she is still recovering, there is nothing to show that she was prevented by any continuing disability or medical need from attending the hearing on 29 June 2021.  Further, we note that the applicant had not given any prior notice to the court that she would not be able to attend the original hearing which, but for the unforeseeable rainstorm, would have taken place on 28 June 2021.

16.  In the circumstances, we do not think that the applicant has shown any valid excuse for being absent at the hearing.  We consider it just and appropriate to proceed to determine the appeal on the basis of the materials before us.

Legal principles

17.  In assessing the merits of the appeal, we have borne in mind the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)     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.  Although 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 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.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or his decision was otherwise plainly wrong.

(3)     In an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will 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’s decision, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

18.  The grounds of appeal as set out in the Notice of Appeal are vague and general and the applicant has failed to elaborate upon the alleged procedural unfairness in the decision‑making process.  We have carefully reviewed the Form CALL‑1 and are satisfied that the Judge had duly set out the applicant’s grounds of challenge at [12] followed by his analysis and findings at [13] to [17].  It was for the applicant to put forward and substantiate her complaints against the Board’s decision, not for the Judge to hold an inquiry or investigation to see if anything had gone wrong.  The Judge had clearly explained why he rejected the applicant’s ground of challenge.  We have found no appealable error in the Judge’s decision. 

19.  It is also incorrect for the applicant to say in her written submissions that she did not have a fair oral hearing.  There were oral hearings held before the Board and the Judge.  There is nothing to suggest that she was not given a proper opportunity to address the respective tribunals and elaborate upon her case on those occasions.

20.  Further, it is trite that the high standard of fairness applicable does not mean that a non‑refoulement claimant has an absolute right to legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  The applicant had already had legal representation during the first instance determination proceedings before the Director.  In the circumstances of this case we do not find it reasonably arguable that the process is impugned because of the lack of legal representation during the hearing before the Board or the court below.

21.  Moreover, the applicant’s claim on BOR 2 risk was rejected by the Board on the ground that even on her own case, she had not suffered any harm or ill‑treatment at the hands of the Maoists under any of the proscribed risks that would qualify her for a claim on the applicable grounds including BOR 2 risk.

22.  We are satisfied that no ground has been made out to impugn the Judge’s decision or to show that there are reasonable prospects of success in the intended judicial review.  The Judge was right to refuse leave.

Order

23.  For the above reasons, this appeal is dismissed.